ambc-20240801
0000874501FALSE00008745012024-08-012024-08-01

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM8-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 1, 2024
Ambac Financial Group, Inc.
(Exact name of Registrant as specified in its charter)

Delaware1-1077713-3621676
(State of incorporation)(Commission
file number)		(I.R.S. employer
identification no.)
One World Trade CenterNew YorkNY10007
(Address of principal executive offices)
(212)
658-7470
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading SymbolName of each exchange on which registered
Common stock, par value $0.01 per shareAMBCNew York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2).
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.
Shareholders’ Agreement
On August 1, 2024, in connection with the consummation of the Beat Transaction (as defined below), Ambac Financial Group, Inc. (the “Company”), Cirrata V LLC, a Delaware limited liability company and an indirect wholly owned subsidiary of the Company (the “Purchaser”), Beat Capital Partners Limited (“Beat”) and Beat’s management team and Bain Capital Credit LP (“Bain” and, together with certain members of Beat’s management team, the “Rollover Shareholders”) entered into a Shareholders’ Agreement by and among the Company, the Purchaser, the Rollover Shareholders and Beat (the “Shareholders’ Agreement”).
The Shareholders’ Agreement provides for, among other things, the granting of (i) put options to each Rollover Shareholder to require the Purchaser to purchase from such Rollover Shareholder, the Relevant Shares (as defined in the Shareholders’ Agreement) (the “Put Option”), and (ii) call options to the Purchaser to purchase from each Rollover Shareholder, the Relevant Shares (the “Call Option”).
The Put Option will be exercisable for up to 25% of the Relevant Shares held by each Rollover Shareholder per year beginning on March 31, 2026 and thereafter on March 31 of each year so long as there are unexercised Put Options. To the extent a Rollover Shareholder continues to hold Relevant Shares as a result of not exercising or not fully exercising a Put Option prior to such date, then an additional Put Option will become exercisable and roll forward to the immediately following year each year that such Put Option was not exercised or not fully exercised. The Call Option will be exercisable, on a cumulative basis, for up to 25% of the Relevant Shares held by each Rollover Shareholder per year beginning on March 31, 2026 and thereafter on March 31 of each year so long as there are unexercised Call Options.
The exercise price of a Put Option or a Call Option will be calculated based on an adjusted EBITDA figure taking into account, among other things, the financial results of the most recently completed financial year of the Company ending December 31 and certain future projections.
At the completion of the sale and purchase of the Relevant Shares pursuant to the exercise of a Put Option or a Call Option, the Purchaser will pay the relevant Rollover Shareholder, at the Purchaser’s election, (i) by procuring the issue of Company Common Stock to such Rollover Shareholder at the volume weighted average price of shares of common stock, par value $0.01, of the Company (the “Company Common Stock”) for the period comprising the 25 consecutive trading days prior to (but not including) the date of the closing of the option and (ii) the balance of such aggregate exercise price by payment in cash. The amount of Company Common Stock issued pursuant to the Put Option and Call Option, together with the Consideration Stock, will not exceed 19.9% of the outstanding Company Common Stock as of the date of the Beat Purchase Agreement unless approved by the Company shareholders.
For so long as the Purchaser holds shares of Beat, the Purchaser shall have the right to appoint at least five directors (and in no event less than half of the directors) to the board of directors of Beat (the “Beat Board”). For so long as Bain holds (i) at least 25% of the shares of Beat that it held immediately post-closing, Bain shall have the right to appoint two directors to the Beat Board and (ii) less than 25% of the shares of Beat that it held immediately post-closing, Bain shall have the right to appoint one director to the Beat Board. In addition, for so long as the management shareholders (together) hold (a) at least 25% of the shares of Beat that they (together) held immediately post-closing, a majority of the management shareholders shall have the right to appoint two directors to the Beat Board and (b) less than 25% of the shares of Beat that they (together) held immediately post-closing and there is at least one management shareholder, a majority of the management shareholders shall have the right to appoint one director to the Beat Board.
The description of the Shareholders’ Agreement in this report is qualified in its entirety by reference to the full text of the Shareholders’ Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein.
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Credit Agreement
On August 1, 2024, the Company entered into a credit agreement (the “Credit Agreement”) by and among the Company, Purchaser, Cirrata Group LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Cirrata Group”) and Cirrata V UK Limited, a limited liability company incorporated under the laws of England and Wales (“Cirrata UK”, and together with Cirrata Group and Cirrata V, the “Borrowers”; individually, each a “Borrower”), the lenders from time to time party thereto (the “Lenders”) and UBS AG, Stamford Branch, as administrative agent for the Lenders.
The Credit Agreement provides for a term loan facility of $150,000,000 (the “Term Loan Facility”) that matures on July 31, 2025. The Borrowers used the proceeds of the Term Loan Facility to (i) finance the Beat Transaction and (ii) pay fees and expenses incurred in connection with the transactions contemplated by the Credit Agreement.
The obligations of the Borrowers under the Credit Agreement are guaranteed by the Company and are secured on a first-priority basis by (i) a pledge by the Company of all of the capital stock of Everspan Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company and (ii) a pledge by Purchaser of all of the capital stock of Beat held by Purchaser.
The Term Loan Facility will bear an interest rate based on a floating rate (which may be a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (“SOFR”) or a Base Rate) plus a margin. The margin in respect of SOFR loans is 4.50% and in respect of Base Rate loans is 3.50%; provided that the applicable margin shall automatically increase to (i) 5.50% in respect of SOFR Loans and 4.50% in respect of Base Rate Loans on November 1, 2024, (ii) 6.50% in respect of SOFR Loans and 5.50% in respect of Base Rate Loans on February 1, 2025 and (iii) 7.50% in respect of SOFR Loans and 6.50% in respect of Base Rate Loans on May 1, 2025. A duration fee equal to 1% of the then outstanding Term Loan Facility shall be due on each of February 1, 2025 and May 1, 2025, to the extent the Term Facility is not repaid earlier.
The Borrowers may optionally prepay the Term Loan Facility, in whole or in part, without premium or penalty at any time. The Borrowers shall be required to make mandatory prepayments from time to time equal to the amount of any incurrence of further borrowed money indebtedness, any asset sales or any equity issuances (in each case subject to specified exceptions and thresholds) by the Company or specified subsidiaries.
The Credit Agreement contains customary representations and warranties as well as affirmative and negative covenants. Negative covenants include, among others, with respect to the Borrowers and the Company, limitations on liens, disposition of assets, transactions with affiliates, fundamental changes, restricted payments, investments and acquisitions, dispositions and certain restrictive agreements. The Credit Agreement contains customary events of default, including, among others, the occurrence of a Change in Control (as defined in the Credit Agreement).
The Credit Agreement contains a financial covenant requiring the Company to not permit its consolidated net worth to be less than $700,000,000, tested on the last day of each fiscal quarter commencing September 30, 2024.
The description of the Credit Agreement in this report is qualified in its entirety by reference to the full text of the Credit Agreement, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On August 1, 2024 (the "Closing Date"), the Company completed its previously announced acquisition of Beat pursuant to a share purchase agreement (the “Beat Purchase Agreement”), by and among the Company, the Purchaser, certain sellers set forth therein (the “Sellers”) and Beat, pursuant to which, and upon the terms and subject to the conditions set forth therein, effective July 31, 2024, the Purchaser purchased from the Sellers approximately 60% of the entire issued share capital of Beat; the total consideration as of the Closing Date was approximately $277.9 million, of which approximately $248.6 million was paid in cash and the remainder was satisfied through the issuance of 2,216,023 shares of Company Common Stock (the “Beat Transaction”). The issuance of shares of Company Common Stock was exempt from registration under the Securities Act of 1933, as
3

amended (the “Securities Act”), pursuant to Section 4(a)(2) thereof because the issuance did not involve any public offering of securities.
The description of the Beat Purchase Agreement in this report is qualified in its entirety by reference to the full text of the Beat Purchase Agreement, a copy of which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on June 5, 2024 and is attached as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 concerning the Company’s direct financial obligations under the Credit Agreement is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information contained in Item 2.01 concerning the Company’s unregistered sale of equity securities under the Shareholders’ Agreement is incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.
On August 2, 2024, the Company issued a press release to announce the closing of the Beat Transaction, a copy of which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
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Item 9.01. Financial Statements and Exhibits
(a)    Financial Statements of Business Acquired.
The financial information required by this Item 9.01(a) of Form 8-K was filed with the Company’s Current Report on Form 8-K filed on August 2, 2024 and is incorporated herein by reference.
(b)     Pro Forma Financial Information.
The pro forma financial information required by this Item 9.01(b) of Form 8-K was filed by with the Company’s Current Report on Form 8-K filed on August 2, 2024 and is incorporated herein by reference.
(d)    Exhibits.    The following exhibit is filed as part of this Current Report on Form 8-K:
EXHIBIT INDEX
Exhibit
NumberExhibit Description
2.1
10.1
10.2
99.1
99.2
99.3
99.4
101.INS
XBRL Instance Document - the instance document does not appear in the interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
101.SCH
XBRL Taxonomy Extension Schema Document.
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document.
101.LAB
XBRL Taxonomy Extension Label Linkbase Document.
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document.
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document.
104
Cover Page Interactive Data File - The cover page interactive data file does not appear in the Interactive Data File because its XBRL tags or embedded within the Inline XBRL document
*    Certain schedules and other similar attachments to such agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish a copy of such omitted documents to the SEC upon request.
1

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.
Ambac Financial Group, Inc.
(Registrant)
Dated:August 2, 2024By:
/s/ Stephen M. Ksenak
Stephen M. Ksenak
Senior Managing Director, General Counsel
and Assistant Secretary
3
EXECUTION VERSION CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS AGREEMENT (INDICATED BY “[***]”) BECAUSE SUCH INFORMATION IS BOTH NOT MATERIAL AND THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. SHARE PURCHASE AGREEMENT Relating to the sale and purchase of shares in the capital of Beat Capital Partners Limited Between Those persons listed in Part 1 of Schedule 1 and CIRRATA V LLC and AMBAC FINANCIAL GROUP, INC. and BEAT CAPITAL PARTNERS LIMITED

 
TABLE OF CONTENTS 1. INTERPRETATION ................................................................................................................ 1 2. SALE AND PURCHASE OF THE SALE SHARES ............................................................... 17 3. CONSIDERATION ............................................................................................................... 17 4. CONDITIONS ...................................................................................................................... 21 5. INFORMATION OBLIGATIONS ........................................................................................... 25 6. PRE-CLOSING .................................................................................................................... 26 7. CLOSING STATEMENT ...................................................................................................... 29 8. CLOSING ............................................................................................................................. 30 9. LEAKAGE ............................................................................................................................ 32 10. TRANSACTION BONUSES ................................................................................................. 33 11. WARRANTIES ..................................................................................................................... 33 12. LIMITATION OF LIABILITY .................................................................................................. 41 13. PROTECTIVE COVENANTS ............................................................................................... 47 14. ANNOUNCEMENTS, CONFIDENTIALITY AND PRIVILEGE ............................................... 48 15. GUARANTEE ....................................................................................................................... 50 16. COMPANY RECORDS ........................................................................................................ 52 17. D&O INSURANCE ............................................................................................................... 52 18. SELLERS' REPRESENTATIVES ......................................................................................... 52 19. OTHER PROVISIONS ......................................................................................................... 54 SCHEDULE 1 ............................................................................................................................. 61 SCHEDULE 2 ............................................................................................................................. 64 SCHEDULE 3 ............................................................................................................................. 85 SCHEDULE 4 ............................................................................................................................. 87 SCHEDULE 5 ............................................................................................................................. 88 SCHEDULE 6 ............................................................................................................................. 89 SCHEDULE 7 ........................................................................................................................... 111 SCHEDULE 8 ........................................................................................................................... 113 SCHEDULE 9 ........................................................................................................................... 114 SCHEDULE 10 ........................................................................................................................... 120 SCHEDULE 11 ........................................................................................................................... 121 SCHEDULE 12 ........................................................................................................................... 122

 
Signing documents Announcement Disclosure Letter Debt Commitment Papers Agreed-form documents at signing Form of Funds Flow EV to Equity Bridge (Signing) Form of amendments to the employment agreements of the Management Sellers Shareholders' Agreement Existing Shareholders' Agreement Termination Deed BCC Funding Commitment Letter Termination Deed BCC Loan Agreement Termination Deed BCC New Funding Commitment Letter Tax Deed

 
- 1 - THIS SHARE PURCHASE AGREEMENT is made on ___________________ 2024 Between: (1) Each of the Sellers whose names are set out in Part 1 of Schedule 1 (the Sellers and each a Seller); (2) CIRRATA V LLC, incorporated and registered in the State of Delaware with file number 3768605 whose registered office is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle (Purchaser); (3) AMBAC FINANCIAL GROUP, INC., incorporated and registered in the State of Delaware with file number 2261651 whose registered office is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle (Ambac); and (4) BEAT CAPITAL PARTNERS LIMITED, incorporated and registered in England with company number 10198821 whose registered office is at 5th Floor 6 Bevis Marks, London, England, EC3A 7BA, together the parties, and each a party. Whereas: (A) The Sellers have agreed to sell the Sale Shares (as defined below) and to perform the obligations imposed on the Sellers under this Agreement. (B) The Purchaser has agreed to purchase the Sales Shares and to perform the obligations imposed on the Purchaser under this Agreement. (C) Ambac is the ultimate parent company of the Purchaser and has agreed to: (i) guarantee the performance of certain obligations of the Purchaser under this Agreement; and (ii) perform the obligations imposed on Ambac under this Agreement. (D) The parties acknowledge that, prior to entering into this Agreement, the Sellers have procured receipt of the Pre-Signing Third Party Consents. The parties further acknowledge that, on the date of this Agreement, the Purchaser has entered into and provided a copy of the W&I Policy to the Sellers’ Representatives. IT IS AGREED as follows: 1. INTERPRETATION In this Agreement, unless the context otherwise requires, the provisions in this clause 1 apply: 1.1 Definitions A Ordinary Shares: A ordinary shares of £0.50 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Accounts: the audited consolidated accounts of the Company (including the consolidated statement of financial position, consolidated statement of comprehensive income, consolidated statement of changes in equity, consolidated statement of cash flows and the notes included therein) as at, and for the 12-month period ended on, the Accounts Date (it being understood that the Locked Box Accounts are the Accounts). Accounts Date: 31 December 2023.

 
- 2 - Additional Amounts: has the meaning given to it in clause 3.4.1. Affiliate: in respect of any person, a person who or which, directly or indirectly, controls, or is controlled by, or is under common control with such person, and provided that: (a) Paraline's "Affiliates" shall mean each of the subsidiaries of Paraline from time to time only; (b) Colemont's "Affiliates" shall mean each of the subsidiaries of Colemont from time to time only; and (c) BCC's "Affiliates" shall mean each of the subsidiaries of BCC from time to time only and shall exclude any portfolio or other investee company of, and any investors in, funds managed and/or advised by Bain Capital Credit, LP and/or any of its affiliates. Ambac Outstanding Shares: has the meaning given in clause 3.6.1(b). Anti-Corruption Laws: all Applicable Laws, including regulations, directives, statutes, subordinate legislation and civil codes of any jurisdiction that relate to bribery or corruption, including the UK Bribery Act 2010. Anti-Money Laundering Laws: all Applicable Laws, including regulations, directives, statutes, subordinate legislation and civil codes relating to money laundering or the proceeds of criminal activity, including (i) the European Union Money Laundering Directives and member states' implementing legislation, and (ii) the UK Proceeds of Crime Act 2002. Announcement: the announcement in the agreed form to be issued by the Purchaser after signing of this Agreement. Applicable Law: all applicable laws, regulations, directives, statutes, subordinate legislation and civil codes (including all applicable financial record keeping and reporting requirements, rules and guidelines) of any applicable jurisdiction (including Competition Laws), any applicable rules and guidance issued by a Relevant Authority, all judgments or order of any applicable court or competent authority or tribunal given or made against any Group Company (or having the force of law in respect of any Group Company) and all codes of practice having force of law. Articles: the articles of association of the Company as at the date of this Agreement as included at document 2.1.2.3.1 of the Data Room. Authorisation: any licence, consent, permit, approval or other authorisation of a Relevant Authority (including any licence for the purpose of carrying out regulated activities) in any jurisdiction in which any Group Company carries on such regulated activities. B Ordinary Shares: the B ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. BCC: BCC Buffalo Bidco Limited. BCC Account: a bank account in the name of BCC, the details of which are to be notified by the BCC Representative to the Purchaser in accordance with clause 7.1.7. BCC Funding Commitment Letter Termination Deed: the deed of termination, in the agreed form, to be entered into between BCC, BCC CCM Limited and the Company on Closing in respect of a funding commitment letter of 11 November 2020, as amended and restated on 4 October 2022 and 21 March 2023, between those parties.

 
- 3 - BCC Loan Agreement Termination Deed: the deed of termination, in the agreed form, to be entered into between BCC and the Company on Closing in respect of a loan facility agreement of 21 March 2023 between those parties. BCC New Funding Commitment Letter: the new funding commitment letter, in the agreed form, and entered into on Closing between BCC, BCC CCM Limited and the Company. BCC Representative: [***], or such other person(s) as BCC may nominate by written notice to the other parties from time to time. Bermuda Employees: those Employees who are based in Bermuda. BMA Condition: has the meaning given in clause 4.1.2. Burdensome Condition: has the meaning given in clause 4.5. Business Day: a day which is not a Saturday, a Sunday or a public holiday in London, United Kingdom or New York City, USA. Business IT: all material Information Technology which is owned, leased, licensed or used by any Group Company. Business Warranties: the Sellers' Warranties set out in Part 2 of Schedule 6 and Business Warranty means any one of them. Cash Allocation: in respect of each Seller, the allocation of the Cash Consideration due to such Seller as set out in the Proceeds Split. Cash Consideration: an amount equal to the Consideration less the aggregate value (in GBP) of the Consideration Stock. Cash Proportions: the proportion of Cash Consideration due to each Seller set out in the Proceeds Split. C1 Ordinary Shares: the C1 ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. C2 Ordinary Shares: the C2 ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. C3 Ordinary Shares: the C3 ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Change of Control Form has the meaning given in clause 4.2.1. Claim: a claim against any Seller for a breach of any Sellers' Warranty, and any claim against the Sellers under the Tax Deed, but excluding any Leakage Claim. Closing: the completion of the sale of the Sale Shares pursuant to clauses 8.1, 8.2 and 8.3 of this Agreement. Closing Date: the date on which Closing takes place. Closing Spreadsheets: the EV to Equity Bridge (Closing) and the Proceeds Split. Closing Statement: has the meaning given to it in clause 7.1.

 
- 4 - Colemont: Colemont UK Holdings Limited. Colemont Account: a bank account in the name of Colemont, the details of which are to be notified by the Colemont Representative to the Purchaser in accordance with clause 7.1.6. Colemont Representative: [***] or such other person(s) as Colemont may nominate by written notice to the other parties from time to time. Commission: the United States Securities and Exchange Commission. Company: Beat Capital Partners Limited, details of which are set out in paragraph 1 of Schedule 2. Competition Authority: any authority, agency, court or tribunal which has jurisdiction in relation to fair competition, antitrust, merger control, fair trading, consumer protection, monopolies, abuse of dominance, public procurement or other similar matters and, without limiting the generality of the foregoing, includes the UK's Competition and Markets Authority, the European Commission, the General Court of the European Union and the Court of Justice of the European Union. Competition Laws: any law, regulation or administrative process relating to fair competition, antitrust, merger control, fair trading, consumer protection, monopolies, abuse of dominance, public procurement, or other similar matters, and, without limiting the generality of the foregoing, includes Chapters I and II of the Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Conditions: means the conditions listed in clause 4.1. Connected Person: in relation to a person that is an individual, such individual’s Relatives and their spouses or civil partners, the Relatives and spouses or civil partners of such individual’s spouse or civil partner any person(s) acting in the capacity of trustee(s) of a trust of which that individual is the settlor or any body corporate that is controlled by such person or any person that (applying the foregoing) would in turn be a Connected Person of such person. Consideration: has the meaning given in clause 3.1. Consideration Stock: duly authorised, validly issued, fully paid and non-assessable shares of common stock, par value $0.01 per share, of Ambac with an aggregate value of up to $40,000,000, as calculated in accordance with clause 3.6.1(b). Continuing Sellers: the Sellers [***]. Controlled Function: as defined in FSMA. Conversion: has the meaning given in clause 6.3.1. Conversion Resolutions: means the board and shareholder resolutions required to give effect to the Conversion, in a form to be agreed prior to Closing between the parties (acting reasonably). D Shares: the D shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Data Protection Legislation: all Applicable Laws in any jurisdiction relating to privacy or the processing or protection of Personal Information, including the New York Department of

 
- 5 - Financial Services Cybersecurity Regulation (23 N.Y.C.R.R. § 500, et seq.), the California Consumer Privacy Act (Cal. Civ. Code § 1798.100, et seq.]), the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR), the Data Protection Act 2018, the Data Protection Directive (95/46/EC), e-Privacy Directive (2002/58/EC), UK Privacy and Electronic Communications Regulations and including any predecessor, successor or implementing legislation in respect of the foregoing, and any amendments or re-enactments of the foregoing. Data Room: the electronic data room containing documents and information relating to the Group made available by the Sellers online and hosted by Intralinks with ID 15503215 and named "Project Brio") as at 00:01 on 31 May 2024, and which shall be contained on a USB memory stick which the Sellers shall obtain from Intralinks within five Business Days from the date of this Agreement and a copy of such USB memory stick provided to the Purchaser, the contents of which are listed in annex 1 to the Disclosure Letter (such contents being subject to the documents and information that is excluded from the Data Room as set out in the Disclosure Letter). Debt Commitment Papers: means the commitment letter executed by the Debt Financing Sources on or prior to the date of this Agreement (including all related exhibits, schedules, annexes, supplements and term sheets thereto), as amended from time to time after the date hereof in compliance with Clause 11.7; Debt Fee Letters: has the meaning given to it in Clause 11.7. Debt Financing: has the meaning given to it in Clause 11.7. Debt Financing Agreements: has the meaning given to it in Clause 11.7. Debt Financing Sources: has the meaning given to it in Schedule 9. Debt Marketing Materials: has the meaning given to it in Schedule 9. Disclosure Letter: the letter dated on the same date as this Agreement from the Management Sellers to the Purchaser Fairly Disclosing information constituting exceptions (or otherwise relevant) to the Business Warranties. E Ordinary Shares: the E ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Employees: the employees of the Group Companies, including any persons engaged as directors, workers, consultants or secondees by any Group Company at the date of this Agreement, and Employee means any one of them. Encumbrance: any claim, charge, mortgage, lien, option, equitable right, power of sale, pledge, hypothecation, usufruct, retention of title, right of pre-emption, right of first refusal or other third party right or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing. Escrowed MA Costs Amount: £1,500,000 to be used by the Group to cover costs relating to the setting up of a managing agent or as otherwise set out herein. EV to Equity Bridge (Closing): an updated version of the EV to Equity Bridge (Signing) as finalised in accordance with clause 7.

 
- 6 - EV to Equity Bridge (Signing): the spreadsheet, in the agreed form, set out in tab "1) Summary EV Equity Bridge" of the Excel file titled "Project Brio Q4 2023 EV to Equity Bridge (1 June 2024 – For Signing)". Exchange Act: the U.S. Securities Exchange Act of 1934, as amended. Existing Shareholders' Agreement: the shareholders' agreement relating to the Company originally dated 30 August 2020, as amended and restated on 11 November 2020, 10 May 2021 and 3 January 2023 and as amended from time to time (including on 1 September 2023). Existing Shareholders' Agreement Termination Deed: the deed of termination relating to the Shareholders' Agreement, in the agreed form, to be entered into at Closing between the Sellers, the Purchaser and the Company. F Ordinary Shares: the F ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Fairly Disclosed: fairly disclosed in such reasonable detail to enable (or ought reasonably to enable) the Purchaser to assess the scope and nature of the matter disclosed. FCA: the UK Financial Conduct Authority. Filing: any written communications, notifications or filings submitted to a Relevant Authority in connection with the obtaining of an Authorisation. Firm and Firms: have the meanings given in clause 14.3.1. Fixed Consideration: has the meaning given in clause 3.1.1. Fundamental Warranty Claim: any Claim in respect of any Fundamental Warranty. Fundamental Warranties: the Sellers' Warranties set out in Part 1 of Schedule 6 and Fundamental Warranty means any one of them. Funds Flow: a spreadsheet, to be agreed in writing by the parties, showing the agreed flow of funds at Closing. G Ordinary Shares: the G ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Group: the Group Companies, taken as a whole. Group Companies: the Company and the Subsidiaries and Group Company means any one of them. Guaranteed Obligations: all present and future obligations and liabilities of the Purchaser under this Agreement and any agreement or instrument to be entered under it in order for the Purchaser to be able to satisfy its Closing obligations, including all money and liabilities of any nature from time to time due, owing or incurred by the Purchaser under this Agreement. H Share Repurchase: has the meaning given to it in clause 6.2.1. H Share Repurchase Documents: means the repurchase agreements and related board and shareholder resolutions of the Company required to give effect to the H Share Repurchase in a form to be agreed prior to Closing between the parties (acting reasonably)

 
- 7 - H Shares: the H ordinary shares of £0.50 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Individual Seller: each of [***] in their capacity as Sellers. Information Technology: information technology, computers, computer systems, communication systems, databases, servers, network and telecommunications equipment and infrastructure, data and Software (including associated proprietary materials, user manuals and other related documentation and associated services), hardware (whether general purpose or special purpose), firmware, middleware, and Internet websites. Intellectual Property Rights: all intellectual property and similar proprietary rights in any and all jurisdictions throughout the world, whether registered or unregistered, including all (i) trademarks, service marks, trade names, brand names, corporate names, trade dress, trade styles, acronyms, tag-lines, slogans, logos, get up, uniform resource locators, social media handles and accounts, and other identifiers of source or origin, together with all goodwill associated with the foregoing, (ii) patents and patent applications, petty patents, utility models and supplementary protection certificates, including all reissues, divisionals, revisions, renewals, extensions, provisionals, reexaminations, continuations and continuations-in-part of any of the foregoing, (iii) Know-how, (iv) copyrights and corresponding rights in copyrightable subject matter in published and unpublished works of authorship (including in Software), semiconductor topography, database and design rights, data and data collections (in each case, whether published or unpublished), and “moral” rights, (v) domain names, personalized subdomains and URLs, (vi) rights to sue at law or in equity for infringement of any of the foregoing, for passing off and in unfair competition, rights in opposition proceedings and all other similar rights in any part of the world (including in Know-how) including, where such rights are obtained or enhanced by registration, and the right to receive all proceeds and damages therefrom, and (vii) all rights to obtain registration of such rights and applications and rights to apply for or renew such registrations. Investor Seller: each of [***] in their capacity as Sellers. Know-how: all non-trivial industrial and commercial information and techniques in any form not in the public domain, including inventions, ideas, concepts, methods, techniques, processes, models, drawings, formulae, technical and other data, test results, reports, project reports and testing procedures, instruction and training manuals, tables of operating conditions, market forecasts, research and development plans, business and marketing plans, lists and particulars of customers and suppliers, source code and Software, and all other trade secrets, know-how, and confidential business information. Leakage: any of the following in each case (i) by a Group Company to or for the benefit of a Seller or any member of the Sellers' Group and (ii) during the period from (but excluding) the Locked Box Accounts Date to (and including) the Closing Date: (a) any dividend or distribution or other return of capital, income or profit declared, paid or made or agreed to be paid or made or any repurchase, redemption, repayment or return of share or loan capital (or any other relevant securities) by any Group Company to any member of the Sellers' Group; (b) any payments made or agreed to be made by or on behalf of any Group Company to or for the benefit of any member of the Sellers' Group other than in the ordinary course of business and on arms’ length terms;

 
- 8 - (c) any assets or rights or other benefits transferred or agreed to be transferred by or on behalf of any Group Company either: (i) to any member of the Sellers' Group; or (ii) for the benefit of any member of the Sellers’ Group; (d) the purchase by any Group Company of any assets, rights, value or benefits either: (i) from any member of the Sellers' Group; or (ii) for the benefit of any member of the Sellers’ Group (e) any liabilities assumed, indemnified or incurred or agreed to be assumed, indemnified or incurred (including under any guarantee, indemnity or other security) by or on behalf of any Group Company to or for the benefit of any member of the Sellers' Group; (f) the creation of any Encumbrance over any assets (or any interest in any such asset) of any Group Company for the benefit of any member of the Sellers’ Group; (g) lending, borrowing or interest payments between any Group Company and any member of the Sellers’ Group; (h) the waiver or agreement to waive by or on behalf of any Group Company of any amount owed to that Group Company either: (i) by any member of the Sellers' Group; or (ii) for the benefit of a member of the Sellers’ Group; (i) the gross amount of any bonuses, severance or other special payments to be paid to any Seller or officer or director of a Group Company by or on behalf of any Group Company to the extent due as a result of Closing occurring (excluding any Transaction Bonuses); (j) any payment and/or liabilities assumed or incurred or agreed to be assumed or incurred by any Group Company in respect of the Transaction; and (k) any agreement, arrangement, commitment or resolution (whether or not legally binding) of any Group Company (or any person on its behalf) to do any of the things in paragraphs (a) to (j) above, (l) any non-recoverable Taxation payable by any Group Company (or which would have been payable by a Group Company but for the use of a relief) as a consequence of any of the matters referred to in paragraphs (a) to (k) above (except if and to the extent that such Taxation has been taken into account under paragraphs (a) to (k)); other than any Permitted Leakage and in each case net of (i) any amount in respect of VAT which is recoverable as input tax by a Group Company or the representative member of any VAT group of which is it a member and (ii) the amount of any Taxation credit or benefit obtained or obtainable by any member of the Purchaser’s Group or the Group Companies (including a Taxation reduction or the creation or the increase of carried back or forward Taxation losses) as a result of any Leakage. For the purposes of this definition: (x) reference to any Seller or the Sellers’ Group shall include any nominee, trustee or agent or any other person receiving monies or any benefit on behalf of any such person or on whose behalf any obligation, or liability is assumed or indemnity is incurred; (y) BCC’s Affiliates, Paraline’s Affiliates and Colemont’s Affiliates shall include portfolio or other investee company or funds managed and/or advised by their respective Affiliates. Leakage Claim: any claim against the Sellers under clauses 9.1 and/or 9.2 of this Agreement.

 
- 9 - Licensed IPR: all Intellectual Property Rights licensed (in writing or otherwise) to a Group Company for the use made by such Group Company in relation to its business. Lloyd's: the Society and Corporation of Lloyd's incorporated under the Lloyd's Acts 1871 to 1982. Lloyd’s Regulations: any bye-laws, regulations, codes of practice, and mandatory directions and requirements governing the conduct and management of underwriting business at Lloyd’s from time to time (whether by the Council or otherwise) and the provisions of any deed, agreement, or undertaking executed, made, or given for compliance with Lloyd’s requirements from time to time. Locked Box Accounts: the audited consolidated accounts of the Company (including the consolidated statement of financial position, consolidated statement of comprehensive income, consolidated statement of changes in equity, consolidated statement of cash flows and the notes included therein) for the period beginning on 1 January 2023 and ending on the Locked Box Accounts Date, located in folder 3.1.1.1 of the Data Room. Locked Box Accounts Date: 31 December 2023. Lock-up Period: has the meaning given to it in clause 11.1.7. Long Stop Date: the first Business Day falling four months after the date of this Agreement or, as extended pursuant to clauses 4.8.2 or 4.8.3. Losses: all losses, liabilities, costs (including reasonable legal costs and reasonable experts' and consultants' fees), charges, reasonable expenses, actions, proceedings, claims and demands. Management Accounts: the unaudited management accounts of each of the Group Companies, including the profit and loss account and balance sheet for the financial period from the Accounts Date and ending on the Management Accounts Date. Management Accounts Date: 31 March 2024. Management Representative: [***], or such other person(s) as a majority (by proportion of Shares held) of the Management Sellers and the Individual Sellers may nominate by written notice to the other parties from time to time. Management Seller: each of [***] in their capacity as Sellers. Management Seller Accounts: the respective bank accounts in the name of each Management Seller, the details of which are to be notified by the Management Representative to the Purchaser in accordance with clause 7.1.8. Material Contracts: any contract: (i) to which a Group Company is party and which is material to the business of the Group as a whole; or (ii) which has a value in excess of £250,000; or (iii) which includes covenants that would restrict any Group Company's ability to carry on business in any part of the world; or (iv) to which a Group Company is party and which is material to the business of the Group as a whole and which includes change-of control provisions. Maximum Liability Limit: has the meaning given in clause 12.4. MIP: has the meaning given to it in the Shareholders' Agreement.

 
- 10 - New Ordinary Shares: has the meaning given in clause 6.3.1. Open Source Software: any Software licensed, provided or distributed under any open source license, including any license meeting the Open Source Definition or the Free Software Definition (as promulgated by the Open Source Initiative or the Free Software Foundation, respectively) or any Software that contains or is derived from any such Software. Ordinary Shares: ordinary shares of £1.00 each in the capital of the Company having the rights set out in the articles of association of the Company from time to time. Owned IPR: all Intellectual Property Rights which are owned or purported to be owned by any Group Company. Paraline: Paraline Group, Ltd. Paraline Account: a bank account in the name of Paraline, the details of which are to be notified by the Paraline Representative to the Purchaser in accordance with clause 7.1. Paraline Representative: [***], or such other person(s) as Paraline may nominate by written notice to the other parties from time to time. Pension Scheme: the (defined contribution) group personal pension scheme established by the Group with Aviva plc in force at the date of this Agreement details of which are set out in the Data Room. Permitted Leakage: any matter set out in Schedule 5. Personal Information: any data or information in possession or control of a Group Company that identifies or enables a person in possession thereof to identify a natural person or that is otherwise considered personally identifiable information or personal data under Applicable Law. Premises: the leasehold premises set out in the document titled "4.7.2 Offices in US and UK_KB_SR Updated.xlsx"found as document 4.7.4 of the Data Room. Pre-Closing Specified Leakage Amount: has the meaning given in clause 3.7. Pre-Closing Third Party Consents: written consents and/or waivers of termination rights provided by certain parties under the terms of the contracts set out in Schedule 10 between those parties and the Company (or another Group Company) in respect of any change of control arising from the Transaction. Pre-Signing Third Party Consents: written consents and/or waivers of termination rights, in the agreed form, provided by Asta Managing Agency Ltd, Munich Re Syndicate Limited and Tetralia Corp. under the terms of certain contracts between those parties (or their affiliates) and the Company (or another Group Company), in respect of a change of control arising from the Transaction. Privileged Communications: has the meaning given in clause 14.3.2. Proceeds Split: the spreadsheet, in the agreed form, set out in tab "2) Master Split of Proceeds" of the Excel file titled "Project Brio Q4 2023 (1 June 2024 – For Signing)" as finalised in accordance with clause 7. Purchaser's Group: the Purchaser and its holding companies and subsidiaries and any subsidiary of any such holding company from time to time.

 
- 11 - Purchaser's Lawyers: Debevoise & Plimpton LLP of 65 Gresham Street, London EC2V 7NQ. Relative: means an individual’s spouse or civil partner, brother, sister, father, mother or lineal descendant. Regulatory Requirements: all applicable laws, rules, regulations and requirements of any Relevant Authority including the FCA Handbook of Rules and Guidance, any directly applicable EU regulations, and any Lloyd's Regulations. Relevant Authority: any body, government, government department, quasi-governmental, supranational, statutory, regulatory or investigative body, self-regulatory organisation, authority, agency, bureau, board, commission, court, association, institution, department, tribunal or instrumentality thereof (including the Bermuda Monetary Authority, any Competition Authority and any governing body of any securities exchange), and any other insurance or financial services or other regulatory authority which regulates or supervises the Purchaser, the Sellers, any member of the Sellers' Group (and, in respect of BCC, any person who or which, directly or indirectly, controls, or is controlled by, or is under common control with BCC (including Bain Capital Credit LP, any funds managed or advised by it and/or any of their affiliates)), any member of the Purchaser's Group or any Group Company, as applicable. Relevant Employee: each of (i) the Management Sellers, (ii) those persons listed in Schedule 11; and (iii) any other Employee with a gross base salary of at least £250,000 (or the equivalent amount in the relevant foreign currency) per annum. Restricted Data Room: the electronic data room containing documents and information relating to the Group made available by the Sellers online and hosted by Intralinks with ID 16008275 and named "Project Brio – HR Restricted") as at 00:01 on 31 May 2024, and which shall be contained on a USB memory stick which the Sellers shall obtain from Intralinks within five Business Days from the date of this Agreement and a copy of such USB memory stick provided to the Purchaser, the contents of which are listed in annex 2 to the Disclosure Letter (such contents being subject to the documents and information that is excluded from the Data Room as set out in the Disclosure Letter). RPC: Reynolds Porter Chamberlain LLP. Sale Shares: the Shares to be sold by the Sellers to the Purchaser pursuant to this Agreement as listed in column (5) of the table in Part 1 of Schedule 1. Sanctioned Country: any country or region that is targeted by Sanctions Laws. Sanctioned Person: any individual or entity that is target of sanctions or restrictions under Sanctions Laws, including: (i) any individual or entity listed on any sanctions or export-related restricted party list, including the UK Sanctions List maintained by HM Treasury's Office for Financial Sanctions Implementation, the Consolidated List of Persons, Groups, or Entities Subject to EU Financial Sanctions, or the Specially Designated Nationals and Block Persons List maintained by the Office of Foreign Assets Control; (ii) any person that is ordinarily resident in or entity organised under the laws of a Sanctioned Country; or (iii) any entity that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a person or persons described in (i) or (ii) above of this definition. Sanctions Laws: all laws and regulations relating to economic or trade sanctions, including the laws and regulations administered or enforced by the United Kingdom, European Union and the United States.

 
- 12 - SEC Reports: has the meaning given in clause 11.3.1(l). Securities Act: the U.S. Securities Act of 1933, as amended. Sellers' Group: (a) in respect of each Seller that is not an individual, that Seller and its Affiliates from time to time; and (b) in respect of each other Seller that is an individual, that Seller and its Connected Persons, but in each case, excluding the Group. Sellers' Representatives: the Management Representative, the BCC Representative, the Paraline Representative and the Colemont Representative (unless otherwise specified in this Agreement, acting jointly). Sellers' Warranties: the warranties given by the Sellers pursuant to clause 9.1 and clause 11 and Schedule 6 and Sellers' Warranty means any one of them. Senior Employee: each of (i) the Management Sellers, (ii) those persons listed in Schedule 11; (iii) any other Employee with a gross base salary of at least £175,000 (or the equivalent amount in the relevant foreign currency) per annum; and (iv) any other employee with equity interests above 2.5% (on a fully diluted basis) in a Group Company. Share Price: has the meaning given in clause 3.6.1(b). Shareholders' Agreement: the new shareholders' agreement relating to the Company, in the agreed form, to be entered into at Closing between the Continuing Sellers, the Purchaser and the Company. Shares: the issued shares in the capital of the Company as at the date of this Agreement, comprising the Ordinary Shares, A Ordinary Shares, B Ordinary Shares, C1 Ordinary Shares, C2 Ordinary Shares, C3 Ordinary Shares, D Shares, E Ordinary Shares, F Ordinary Shares, G Ordinary Shares and H Shares and, following the Conversion, any reference in this Agreement to the Shares shall be deemed to refer to the issued shares in the capital of the Company as converted into New Ordinary Shares pursuant to the Conversion. Software: all computer programs, including software implementations of algorithms, models and methodologies, application software, system software and firmware, and databases, including all source code and object code versions thereof, in any and all forms and media, and all related documentation, manuals, descriptions, design and development tools and work product, user interfaces and models. Stock Allocation: in respect of each Continuing Seller, the value of the Consideration to be paid to that Continuing Seller as Consideration Stock as set out in the Proceeds Split. Stock Proportion: in respect of each Continuing Seller, the proportion (expressed as a percentage) of such Continuing Seller's Stock Allocation to the total value of the Stock Consideration to be received by all of the Continuing Sellers as set out in the Proceeds Split. Subrogation Provisions: has the meaning given in clause 12.16.2. Subsidiaries: the companies listed in paragraph 2 of Schedule 2 and Subsidiary means any one of them.

 
- 13 - Sum Recovered: has the meaning given in clause 12.11.3. Surviving Clauses: clauses 1, 8.7, 13, 18 and 19.3 to 19.15 and Surviving Clause means any one of them. Syndicates: Syndicate 4242 and Special Purpose Arrangement (SPA) 1416 at Lloyd's. Tax Authority: any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation. Taxation or Tax: all forms of taxation (other than deferred tax) and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions and levies, in each case in the nature of tax, whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or otherwise and shall further include payments to a Tax Authority on account of Tax, whenever and wherever imposed and whether chargeable directly or primarily against or attributable directly or primarily to a Group Company or any other person and all penalties and interest relating thereto. Tax Deed: the tax deed to be entered into between the Management Sellers and the Purchaser at Closing in the agreed form. Tax Warranties: the Sellers' Warranties set out in paragraph 17 of Part 2 of Schedule 6 and Tax Warranty means any one of them. Trading Period: has the meaning given in clause 3.6.1(b). Transaction: the transactions contemplated by this Agreement or any part of such transactions. Transaction Bonuses: has the meaning given to it in clause 10. Transaction Documents: this Agreement, the Tax Deed, the Disclosure Letter and the Shareholders' Agreement and all documents entered into pursuant to this Agreement and Transaction Document means any one of them. Transfer Agent: Computershare Inc., 462 South 4th Street, Suite 1600, Louisville, KY 40202, in its capacity as the transfer agent of Ambac. US Condition: has the meaning given in clause 4.1.3. US Persons: United States citizens or residents. UK Employees: those Employees who are based in the United Kingdom. US Employees: those Employees who are based in the United States of America. Variable Consideration: has the meaning given in clause 3.1.3. VAT: within the United Kingdom Value Added Tax as may be levied in accordance with the Value Added Tax Act 1994, and outside the United Kingdom any similar Taxation levied by reference to added value or sales. Voting Commitment Notices of Termination: notices of termination to be entered into on or prior to Closing in respect of (i) a voting commitment letter dated 11 November 2020 from [***], in respect of certain shares in the Company held by him, addressed to [***] and (ii) a

 
- 14 - voting commitment letter dated 11 November 2020 from [***], in respect of certain shares in the Company held by him, addressed to [***] and [***]. W&I Insurer: AIG Specialty Insurance Company. W&I Policy: the warranty and indemnity insurance policy to be taken out by the Purchaser with the W&I Insurer at the date of this Agreement. 1.2 Several liability Any provision of this Agreement which is expressed to bind or be an obligation of the Sellers shall bind or be an obligation of each of them severally (and not jointly or jointly and severally) and any reference to the Sellers in this Agreement shall be construed as a reference to each Seller individually and severally (and not jointly or jointly and severally) unless otherwise expressly provided. 1.3 Singular, plural, gender References to one gender include all genders and references to the singular include the plural and vice versa. 1.4 References to persons and companies References to: 1.4.1 a "person" include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (whether or not having separate legal personality); and 1.4.2 a "company" include any company, corporation or body corporate, wherever incorporated. 1.5 References to subsidiaries and holding companies A company is a "subsidiary" of another company (its holding company) if that other company, directly or indirectly, through one or more subsidiaries: 1.5.1 holds a majority of the voting rights in it; 1.5.2 is a member or shareholder of it and has the right to appoint or remove a majority of its board of directors or equivalent managing body; 1.5.3 is a member or shareholder of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or 1.5.4 has the right to exercise a dominant influence over it, for example by having the right to give directions with respect to its operating and financial policies, with which directions its directors are obliged to comply. 1.6 Meaning of "control" and similar expressions In this Agreement, control (together with the correlative meanings, controlled by and under common control with) means with respect to any other person, the possession, directly or indirectly, of power to direct or cause the direction of management or policies of such person

 
- 15 - (whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise). 1.7 Meaning of "material" In this Agreement, "material" shall, unless the context otherwise requires, be construed to mean: 1.7.1 where used or referred to in paragraphs 2.3, 2.5 and 5.7 of Part 2 of Schedule 6, material to the business of the Group as a whole; and 1.7.2 in all other cases, as applicable, material to the relevant person, material to the relevant contract, agreement or obligation or material to the relevant issue or event and the ability of a party to perform its obligations under any Transaction Document. 1.8 Obligation to “procure” In this Agreement, any obligation on any party to procure that another person takes any action shall not require such party to do anything beyond the actions they can reasonably take in their capacity as shareholder, director, officer or employee (as applicable) of the relevant entity (and for the avoidance of doubt such obligation shall not include any matter not objectively within their respective capacity and authority). 1.9 Fiduciary duties For the avoidance of any and all doubt, no individual who is a director of any Group Company shall, in that capacity, be required to do anything that would cause a breach of their fiduciary duties to the relevant Group Company. The foregoing is without prejudice to any claim the Purchaser may have against the Company for breach of any obligations of the Company under this Agreement. 1.10 Headings Headings do not affect the interpretation of this Agreement. 1.11 Schedules, etc. References to this Agreement shall include any Recitals and Schedules to it and references to clauses and Schedules are to clauses of, and Schedules to, this Agreement. References to paragraphs and Parts are to paragraphs and Parts of the Schedules. 1.12 Reference to documents 1.12.1 References to any document (including this Agreement), or to a provision in a document, shall be construed as a reference to such document or provision as amended, supplemented, modified, restated or novated from time to time. 1.12.2 References to any document being in the "agreed form" shall mean such document in the terms agreed between the Sellers' Representatives and the Purchaser and confirmed (including by email) to be in agreed form by the Sellers' Representatives and the Purchaser or RPC and the Purchaser's Lawyers, with such alterations as may be agreed in writing between the Sellers' Representatives and the Purchaser from time to time.

 
- 16 - 1.13 Information References to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm. 1.14 Currencies, exchange rates 1.14.1 References to sterling or pounds sterling or £ or GBP are references to the lawful currency from time to time of the United Kingdom. 1.14.2 References to dollars or USD or $ are references to the lawful currency from time to time of the United States of America. 1.14.3 For the purposes of applying a reference to a monetary sum expressed in sterling in respect of the Consideration payable under this Agreement, an amount in a different currency shall be deemed to be an amount in sterling translated at the exchange rate as at the date of this Agreement (or, if the date of this Agreement is not a Business Day, then the first Business Day immediately following the date of this Agreement), where "exchange rate" means, with respect to a particular currency, the spot rate of exchange (the closing mid-point) for that currency into sterling on such date as published in the London edition of the Financial Times first published thereafter or, where no such rate is published in respect of that currency for such date, at the rate quoted by Barclays Bank as at the close of business in London as at such date. 1.15 Legal terms and enactments 1.15.1 References to any English legal term shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction. 1.15.2 Except as otherwise expressly provided in this Agreement, any express reference to an enactment (which includes any legislation in any jurisdiction) includes references to: (a) that enactment as amended, consolidated or re-enacted by or under any other enactment before or after the date of this Agreement; (b) any enactment which that enactment re-enacts (with or without modification); and (c) any subordinate legislation (including regulations) made (before or after the date of this Agreement) under that enactment, as amended, consolidated or re-enacted as described at (a) or (b) above. 1.16 Non-limiting effect of words The words "including", "include", "in particular" and words of similar effect shall not be deemed to limit the general effect of the words that precede them. 1.17 Meaning of "to the extent that" and similar expressions In this Agreement, "to the extent that" shall mean "to the extent that" and not solely "if", and similar expressions shall be construed in the same way.

 
- 17 - 1.18 Inconsistencies Where there is any inconsistency between the definitions set out in this clause 1 and the definitions set out in any other clause or any Schedule then for the purposes of construing such clause or Schedule the definitions set out in such clause or Schedule shall prevail. 2. SALE AND PURCHASE OF THE SALE SHARES 2.1 Sale and Purchase of the Sale Shares 2.1.1 On and subject to the terms of this Agreement, the Sellers (each as to the Sale Shares set out against its name in Part 1 of Schedule 1) shall sell, and the Purchaser shall purchase, the Sale Shares with full title guarantee. 2.1.2 The Sale Shares set out against the name of the relevant Seller in Part 1 of Schedule 1 shall be sold by that Seller free from Encumbrances and together with all rights and advantages attaching to them as at Closing (including the right to receive all dividends or distributions declared, made or paid on or after Closing). 2.1.3 The Sellers (each pursuant to their respective rights as shareholders of the Company): (a) hereby waive any and all rights of pre-emption over the Shares (whether set out in the Articles, the Shareholders' Agreement or elsewhere); and (b) hereby consent for all purposes (whether in relation to rights set out in the Articles, the Shareholders' Agreement or elsewhere) to the Transaction. 3. CONSIDERATION 3.1 Amount The consideration for the purchase of the Sale Shares under this Agreement shall be, subject to adjustments made in accordance with clauses 3.7 and 3.8, an amount equal to: 3.1.1 £221,583,935 (the Fixed Consideration); plus 3.1.2 the aggregate amount of £22,500 per day accruing from (and including) the Locked Box Accounts Date to (and including) the Closing Date, (the Variable Consideration), together, the Consideration. 3.2 The Consideration shall be apportioned between the Sellers in accordance with their Cash Allocations and Stock Allocations. [***] 3.3 Each Seller agrees to the allocation of the Consideration set out in the Proceeds Split, and it is hereby acknowledged and agreed that: 3.3.1 such allocation reflects the amounts they would have been entitled to under article 46 of the Articles as adjusted to recognise the fair value of the illiquidity of the Continuing Sellers’ retained Shares applicable to each Seller pursuant to the terms of the Transaction Documents and on the basis of the H Share Repurchase having taken effect; and

 
- 18 - 3.3.2 each Seller's allocation of Cash Consideration may be subject to deduction for certain transaction costs and expenses pursuant to clause 19.8.2. 3.4 Each Seller further agrees that: 3.4.1 certain Sellers shall at Closing make payment out of their Consideration proceeds to certain Continuing Sellers (for the purposes of this clause 3.4, the Recipient Sellers) of the additional amounts set out in the Proceeds Split (the Additional Amounts) such amounts being inclusive of employer National Insurance contributions and apprenticeship levy, in recognition of the restrictive covenants and leaver provisions that shall apply in respect of those Recipient Sellers pursuant to the Shareholders' Agreement and in accordance with the Funds Flow, and each Recipient Seller agrees to direct the amounts of any employment-related Tax liabilities required to be paid by such Group Company (including where such Group Company is obliged to pay such liabilities on behalf of such Recipient Sellers) under Applicable Law in respect of or in consequence of the adjustments pursuant to this clause 3.4 (including any UK employee income tax, employee National Insurance contributions and employer National Insurance contributions and their equivalents as applicable under the requirements of the US Internal Revenue Service) to be paid to the relevant Group Company at Closing in accordance with the Funds Flow; and 3.4.2 [***] 3.5 If as a result of or in consequence of the adjustments pursuant to clause 3.4 and/or the payment of the Additional Amounts, the Company or any other Group Company is finally determined within 7 years of the Closing Date to have obtained (by way of deduction, credit or otherwise) the benefit of any deductible expense for corporation tax (a Tax Benefit), the Purchaser and each Seller shall procure that the Company or other Group Company (as applicable) shall pay the relevant Seller(s) (without deduction and in proportion to the amount of such Tax Benefit that results by consequence of the amounts due to the relevant Seller(s) under clause 3.4) an amount equal to the aggregate of: 3.5.1 the value of the Tax Benefit obtained by the Company or other Group Company (as applicable); 3.5.2 the value of any further Tax Benefit obtained by the Company or other Group Company (as applicable) as a result of the making of any payment pursuant to clause 3.5.1, in either case on a cash realised basis. 3.6 Payment of Consideration 3.6.1 The Consideration shall be paid by way of: (a) cash payments pursuant to clause 8.3 in respect of the Cash Consideration in such amounts as set out in the Closing Statement; and (b) the procurement by the Purchaser of the issue of Consideration Stock by Ambac to the Continuing Sellers in such amounts calculated as follows: where VWAP means the volume weighted average price in USD for a share of common stock in Ambac (as calculated by Bloomberg Financial LP using Consideration Stock = [$40,000,000] VWAP

 
- 19 - the function "AMBC US <Equity> VWAP") for the period comprising the 25 consecutive trading days prior to (but not including) the date of the Announcement (such period the Trading Period and such determined price, the Share Price). Notwithstanding the foregoing, if the resulting number of shares of Consideration Stock to be issued to the Continuing Sellers on the Closing Date pursuant to this clause 3.6.1 would reasonably be expected to result in the Continuing Sellers beneficially owning (as determined in accordance with Rule 13d-3 under the Exchange Act) more than 4.9% in aggregate of the Ambac Outstanding Shares as of the close of market on the date of the final Closing Statement prepared in accordance with clause 7 (or if such date is not a Business Day, then the Business Day immediately preceding such date), then the number of shares of Consideration Stock to be issued to each Continuing Seller shall be decreased pro rata to the extent necessary to ensure that the Continuing Sellers beneficially own in aggregate no more than 4.9% of the Ambac Outstanding Shares as of the close of market on the date of the final Closing Statement prepared in accordance with clause 7 (or if such date is not a Business Day, then the Business Day immediately preceding such date). If, as a result of such reduction in the number of Consideration Stock issued, the Sellers would receive Consideration Stock with an aggregate value (expressed as a USD cash amount) lower than the amount they would have received without such reduction, then the Purchaser shall pay in cash (in GBP) to each Continuing Seller on the Closing Date an amount equal to such Continuing Seller’s pro rata amount of such difference. For the purposes of this Agreement, Ambac Outstanding Shares means the number of outstanding shares of common stock of Ambac as of the final day prior to the issuance of the Consideration Stock as reported by the Transfer Agent. Notwithstanding anything to the contrary in this Agreement, if between the final date of the Trading Period and the Closing Date, with respect to the Ambac Outstanding Shares, there shall have been any dividend (whether in cash, stock or otherwise), subdivision, reclassification, recapitalisation, split, combination, exchange or readjustment of shares, or any similar event in each case with a record date during such period, then the number of shares of Consideration Stock to be issued will be appropriately adjusted to reflect such dividend, subdivision, reclassification, recapitalisation, split, combination, exchange or readjustment of shares, or any similar event. Subject to the above, the resulting number of units of Consideration Stock shall be allocated between the Continuing Sellers in their Stock Proportions, save that the number of units of Consideration Stock received by any Continuing Seller may be rounded down by the Purchaser to the nearest whole number so as not to issue a fraction of a unit of common stock. 3.6.2 Ambac agrees to issue the Consideration Stock calculated in accordance with clause 3.6.1(b) to the Continuing Sellers (or their nominees specified in the table in the form at Part 2 of Schedule 1 delivered pursuant to clause 8.3) at Closing, free and clear of any liens or restrictions (other than those arising under state and federal securities laws of the United States) and bearing a restrictive legend in substantially the following form: THE OFFER AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE

 
- 20 - UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY AND ITS TRANSFER AGENT SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND THE TRANSFER AGENT THAT SUCH REGISTRATION IS NOT REQUIRED. Provided that, in respect of BCC only, the restrictive legend shall also include the following language: NOTWITHSTANDING THE FOREGOING, THE SECURITIES HELD BY BCC MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. 3.7 Adjustment for Leakage If any Leakage is notified by the Sellers’ Representatives to the Purchaser or otherwise comes to the attention of the Purchaser on or prior to Closing, subject to the Sellers' Representatives agreeing in writing that Leakage has occurred and the amount of the relevant Leakage (the Pre-Closing Specified Leakage Amount), the amount of the Consideration payable to the relevant Seller or Sellers shall, to the extent possible, be reduced by the Pre-Closing Specified Leakage Amount such that the payment of the reduced Consideration shall be an absolute discharge of the Purchaser's obligation to pay the Consideration to the relevant Sellers on Closing pursuant to clause 8.3, provided that the maximum reduction to the Consideration due to any Seller for any Pre-Closing Specified Leakage Amount shall not exceed the cash amount of Consideration allocated to such Seller(s) under clause 3.2. 3.8 Reduction of Consideration If any payment is made by the Seller(s) to the Purchaser in respect of any claim for Leakage, for any breach of this Agreement or pursuant to an indemnity or covenant to pay under this Agreement (or any agreement entered into under this Agreement), the payment shall, if and to the extent permitted by Applicable Law, be made by way of a reduction to the relevant Seller(s)' Consideration, provided that the Cash Consideration otherwise due to the relevant Seller shall be reduced first. 3.9 Allocation of Reduction of Consideration 3.9.1 Where there is a reduction of the Consideration pursuant to clause 3.7 or 3.8, the payment or adjustment shall be made by way of reduction of the Consideration paid by the Purchaser for the particular Sale Shares to which the payment or adjustment relates under this Agreement. 3.9.2 If: (a) the payment or adjustment relates to a particular Seller, it shall be allocated rateably to the Sale Shares of that Seller by reference to the aggregate value of the Cash Proportions and the Stock Proportions of that Seller; or

 
- 21 - (b) the payment or adjustment relates to no particular Seller, it shall be allocated rateably to all the Sale Shares to which the payment or adjustment relates sold by the Sellers by reference to the aggregate value of the Cash Proportions and the Stock Proportions of each Seller, and the Sellers and the Purchaser shall adopt the adjustment to the Consideration for all Tax purposes to the extent permitted by Applicable Law. 3.10 Escrowed MA Costs Amount The Sellers agree that from the Consideration due to the Sellers at Closing, the Purchaser will pay to the Company to hold in escrow the Escrowed MA Costs Amount. All, or a portion of, the Escrowed MA Costs Amount shall be released for use by the Group to pay any Management Agent formation costs incurred on or prior to 31 December 2025. After such date, any balance shall be released to the Sellers. 4. CONDITIONS 4.1 Conditions Precedent The sale and purchase of the Sale Shares is conditional upon: 4.1.1 the Council of Lloyd's having given its prior written consent (whether or not subject to any conditions) in accordance with paragraph 12 of the Membership Byelaw (No. 5 of 2005) to the Purchaser and any other person who would by virtue of the acquisition of the Sale Shares contemplated by this Agreement become a controller (as defined in the Lloyd's Definitions Byelaw (No.7 of 2005)) (a Lloyd's Controller) of Beat CCM Nine Limited (the Lloyd's Condition); 4.1.2 Alcor Underwriting Bermuda Limited (AUB) having given written notice to the Bermuda Monetary Authority (the BMA) in accordance with the Insurance Act 1978 and related regulations in a form agreed with the Purchaser (such agreement not to be unreasonably withheld or delayed) of the indirect change of control of AUB, and having received written confirmation of no objection from the BMA (the BMA Condition); 4.1.3 the Purchaser having obtained a non-objection letter from the Texas Department of Insurance for change of control in respect of each of Beat Capital Insurance Services LLC, Brace Insurance Services LLC, Magnolia Grove Insurance Services LLC and Marcato Marine Insurance Services LLC, in accordance with Texas Insurance Code §4001.253) (or the documentation of a non-disapproval, as applicable, in each case after notification has been given to the Texas Department of Insurance or any other state insurance regulatory authority in accordance with such state's laws, rules or regulations and approval for change of control has been obtained or is deemed to have been obtained in accordance with those laws, rules or regulations) (the US Condition); 4.1.4 the transactions contemplated in this Agreement or by the Transaction Documents and their consummation having not been prohibited or made illegal by any applicable law or legal proceeding (and if the Purchaser believes that this Condition has not been satisfied, it shall have delivered a written legal opinion from its legal counsel that the transactions have been prohibited or made illegal, and the Purchaser shall use all commercial reasonable endeavours to remove such prohibition or illegality as soon as reasonably practicable and in any case prior to the Long Stop Date); and

 
- 22 - 4.1.5 the Bain New Funding Commitment Letter having been executed and remaining in full force and effect. each a Condition and together the Conditions. 4.2 Responsibility for Satisfaction of the Lloyd's Condition 4.2.1 The Purchaser shall complete the necessary online application(s) required to be submitted to Lloyd's in connection with the satisfaction of the Lloyd's Condition (the Change of Control Form(s)) and submit the same to Lloyds within 20 Business Days of the date of this Agreement. 4.2.2 The Purchaser shall take all reasonable steps necessary to satisfy the Lloyd's Condition as soon as reasonably possible and in any event prior to the Long Stop Date. 4.2.3 In clause 4.2.2, the Purchaser's obligations to take all reasonable steps necessary to satisfy the Lloyd's Condition shall include: (a) responding fully and in a timely manner to any questions and requests for information from Lloyd’s that the Purchaser has or controls necessary to submit the application(s) and/or in respect of the change of ownership of the Company and Beat CCM Nine Limited and the Change of Control Form(s); and (b) accepting any condition on the Purchaser and its Affiliates required by Lloyd's in order to satisfy the Lloyd's Condition, other than a Burdensome Condition. 4.3 Responsibility for Satisfaction of the BMA Condition 4.3.1 The Purchaser shall take all reasonable steps to satisfy the BMA Condition and to collect and submit the information required by the BMA in order to satisfy the BMA Condition commencing the process as soon as reasonably practicable after the date of this Agreement and with a view to the application(s) (including all information required) having been completed and submitted within 20 Business Days of the date of this Agreement, and with a view to the BMA Condition having been satisfied as soon as reasonably possible and in any event prior to the Long Stop Date. 4.3.2 The Purchaser’s obligations to take all reasonable steps necessary to satisfy the BMA Condition shall include: (a) promptly providing the Company with all information the Company may reasonably require in order to procure that the BMA shall receive a written notification in the appropriate form pursuant to Section 30CA of the Insurance Act 1978 (for the purposes of this clause 4.3, the Notification) on behalf of Alcor Underwriting Bermuda Limited as soon as practicable following the date of this Agreement; and (b) accepting any conditions or requirements of the BMA which relate to the Group, other than a Burdensome Condition. 4.3.3 It is acknowledged that for the purposes of fulfilling the BMA Condition, unless as otherwise provided by the BMA: (a) the BMA must receive a letter in connection with the Notification and all such information as the BMA may request; and

 
- 23 - (b) Alcor Underwriting Bermuda Limited must receive written confirmation of "no objection" from the BMA for the change of controller to be effective. 4.4 Responsibility for Satisfaction of the US Condition 4.4.1 The Purchaser shall take all reasonable steps necessary to satisfy the US Condition as soon as reasonably possible and in any event prior to the Long Stop Date. 4.4.2 In clause 4.4.1, the Purchaser’s obligations to take all reasonable steps necessary to satisfy the US Condition shall include: (a) making all filings with and submitting all pre-notifications to the Texas Department of Insurance; (b) obtaining all non-objection letters (or documenting non-disapprovals after expiry of any statutory post-filing deemer period) from the Texas Department of Insurance (or such other state insurance regulatory authority as applicable) necessary in order to satisfy the US Condition; (c) procuring that all such filings shall be made as soon as practicable following signing of this Agreement, but in no event (if each of the Company and the Sellers promptly provide all information, signatures, and cooperation requested by the Purchaser to prepare the Texas filings and no filings are required by any Group Company prior to the Purchaser being able to make its filings) not later than 20 Business Days following the date of this Agreement; (d) responding promptly and completely to all inquiries and requests of the Texas Department of Insurance (or such other state insurance regulatory authority as applicable) for additional information and documents; and (e) accepting any conditions or requirements of the Texas Department of Insurance in order to satisfy the US Condition, other than a Burdensome Condition, and each of the Sellers and the Company shall reasonably cooperate with any reasonable request of the Purchaser in relation to the above and procure that, to the extent lawful and reasonably practicable, any update filings required by the relevant Group Companies in Texas before the Purchaser can submit its filings shall be promptly made, provided that the BCC Representative, the Colemont Representative and the Paraline Representative shall not be required for these purposes to carry out any actions beyond providing information that is reasonably required of them or their respective Sellers. 4.5 Burdensome Conditions 4.5.1 Where the satisfaction of any Condition is subject to, or conditional upon, the satisfaction of any condition or conditions requested or imposed by a Relevant Authority on the Purchaser or any member of the Purchaser's Group and/or the Group (an Imposed Condition), the parties shall not be required to satisfy such Imposed Condition if it: (a) requires the disposal or divestment of any part of the business and/or assets of any member of the Purchaser's Group (other than a Group Company); (b) requires the material disposal or divestment of any part of the business and/or assets of the Group;

 
- 24 - (c) prohibits or restricts or limits the continuation of any part of the business of any member of the Purchaser's Group (other than a Group Company); or (d) prohibits or materially restricts or limits the continuation of any material part of the business of the Group, each of the above being a Burdensome Condition. 4.6 Sellers’ and Company's Conduct in relation to the Conditions 4.6.1 BCC and the Company shall take all reasonable steps within their power to satisfy the condition in clause 4.1.5. 4.6.2 Each of the Sellers (where relevant, acting via the Sellers’ Representatives) and the Company shall in relation to any obligation on the Purchaser with respect to the satisfaction of any Conditions under this clause 4, provide such assistance as the Purchaser may reasonably request from them, provided that the BCC Representative, the Colemont Representative and the Paraline Representative shall not be required for these purposes to carry out any actions beyond providing information that is reasonably required of them or their respective Sellers in order to ensure such fulfilment of the relevant Conditions. 4.7 Waivers The Conditions may be waived only with the prior written consent of the Purchaser, the Management Representative and BCC. 4.8 Effect of non-satisfaction of Conditions by Long Stop Date If any of the Conditions are not satisfied or waived by the Long Stop Date (or, if applicable, as extended pursuant to clause 4.8.2 or such other date as agreed pursuant to clause 4.8.3): 4.8.1 each of the Sellers (where relevant, acting via the Sellers' Representatives) and the Purchaser may terminate this Agreement (other than the Surviving Clauses) by notice in writing to the other party, effective in accordance with clause 19.11; 4.8.2 where the only such Condition(s) are the Lloyd's Condition, the BMA Condition or the US Condition, any of the Sellers' Representatives or the Purchaser may (at its own discretion) extend the Long Stop Date (so long as it has not previously been extended pursuant to this clause 4.8.2) by a maximum of two months by notice in writing to the other parties, effective in accordance with clause 19.11; or 4.8.3 the Sellers (where relevant, acting via the Sellers' Representatives) and the Purchaser may agree in writing to extend the Long Stop Date. 4.9 Consequences of termination If this Agreement is terminated pursuant to clause 4.8, then no party shall have any claim against any other under it, save for any claim arising from a breach of any obligation under this Agreement prior to such termination. Neither the Sellers nor the Purchaser may terminate this Agreement after satisfaction of the Conditions, except where each of the Purchaser and the Sellers' Representatives have expressly agreed in writing to do so with specific reference to this clause 4.9), or otherwise in accordance with this Agreement.

 
- 25 - 5. INFORMATION OBLIGATIONS 5.1 General 5.1.1 Each of the Purchaser, the Sellers (acting via the Sellers’ Representatives) and the Company, in each case where relevant, shall keep the others fully informed of the progress of, and any developments regarding, the satisfaction of the Conditions and disclose in writing to the other party anything they are aware of which will prevent any Condition from being satisfied on or prior to the Long Stop Date as soon as reasonably practicable upon it coming to its attention. 5.1.2 Each of the Company and the Sellers (where relevant, acting via the Sellers’ Representatives) shall (and shall procure that the Group shall) co-operate with the Purchaser and as soon as reasonably practicable accurately provide the Purchaser with such information, materials, documents and assistance as the Purchaser may reasonably require for the purpose of obtaining the satisfaction of any of the Conditions. 5.2 Each of the Purchaser the Company and the Sellers (where relevant, acting via the Sellers’ Representatives) shall promptly give notice in writing to the other parties of the satisfaction of each of the Conditions upon becoming aware of the same, and in any event within three Business Days of becoming so aware. 5.3 Filings and Relevant Authority matters Each of the Purchaser, the Company and the Sellers (where relevant, acting via the Sellers’ Representatives) shall: 5.3.1 promptly provide all information required in connection with any Filings or Authorisations and comply at the earliest practicable date with any reasonable request from a Relevant Authority for additional information, documents or other materials received by such party or its representatives related to such Filings or Authorisations or the Transaction including in connection with any of the Conditions; 5.3.2 act in good faith and use all reasonable endeavours to furnish to the other parties all information required for any Filing to be made to a Relevant Authority by Applicable Law in connection with the Transaction including in connection with any of the Conditions, provided that sensitive information can be redacted for confidentiality or otherwise shared on an "outside counsel only" basis. 5.4 None of the Purchaser, the Company and the Sellers shall, and each of the Sellers and the Company shall procure that no Group Company shall independently participate in any meeting, or engage in any substantive conversation, discussion or negotiation, with any Relevant Authority related to any Filing or Authorisation (where such meeting, conversation, discussion or negotiation relates to such Filing or Authorisation), or related to any claims by such Relevant Authority related to the Transaction, without giving the other party: 5.4.1 prior notice of such meeting, conversation, discussion or negotiation and any supporting documents and agendas other than to the extent it is sensitive information or is prohibited by a Relevant Authority; and 5.4.2 unless prohibited by such Relevant Authority, the opportunity to attend or participate therein.

 
- 26 - 5.5 Each of the Purchaser, the Sellers and the Company (to the extent within their respective capacity and authority to do so) agree in connection with each of the Conditions that they will: (i) not make any Filing to any Relevant Authority without first providing the other with a copy of the notification, application or submission, and any written information which the other proposes to disclose in connection with it; (ii) to the extent practicable, give the other a reasonable opportunity to discuss the content of any such Filing before it is provided to the Relevant Authority; (iii) consider all reasonable comments and requests by the other on the content of any Filing; and (iv) notify the other as soon as reasonably practicable of any material written communications received from a Relevant Authority in relation to such Filing, and promptly provide the other with a copy of any such communications and deal with any requests or enquiries from a Relevant Authority in consultation with the other party, provided that nothing in this clause 5.5 shall oblige a party to provide sensitive, confidential or privileged information to the other parties. 6. PRE-CLOSING 6.1 The Management Sellers’ and the Company's Obligations in Relation to the Conduct of Business 6.1.1 Each of the Management Sellers shall procure that between the date of this Agreement and Closing the Company shall (and the Company agrees to and shall procure that each other Group Company will) carry on its business as a going concern in the ordinary course as carried on prior to the date of this Agreement, save in so far as agreed in writing by the Purchaser. 6.1.2 Each of the Management Sellers and the Company severally undertakes to the Purchaser to: (a) procure that between the date of this Agreement and Closing none of Marcato Marine Insurance Services LLC, Peterborough Agency Limited and Beat CCM Nine Limited shall incur any liability or enter into any commitment save: (i) in respect of activities in relation to or in connection with the run-off of such entities (including the carrying out of any audit, obtaining professional advice, or the recharging of group charges);(ii) in respect of Marcato Marine Insurance services LLC, any actions as are reasonably necessary in running off the existing portfolio of risks, including endorsing policies in the ordinary course of business; or (iii) in so far as agreed in writing by the Purchaser; (b) use reasonable endeavours to procure that between the date of this Agreement and Closing: (i) representatives of the Purchaser’s Group discuss the acquisition of the Group by the Purchaser with the contractual counterparties of the Group in the contracts set out in Schedule 10 (being the Pre-Closing Third Party Consents); and (ii) that these counterparties provide their consent to the transfer of the Sale Shares in accordance with the relevant term(s) of the underlying contract (provided that the failure to obtain such Pre- Closing Third Party Consents shall not mean that the Purchaser is not otherwise obliged to proceed to Closing); and (c) keep the Purchaser informed of any material developments in respect of wind down and dissolution of Marcato Marine Insurance Services LLC, Peterborough Agency Limited and Beat CCM Nine Limited. 6.1.3 Subject to clause 6.1.4, the Company undertakes to the Purchaser to procure that, upon the Purchaser’s written request, any non-US Subsidiary (including the companies listed in paragraph 2.1 of Schedule 2) makes an election under U.S.

 
- 27 - Treasury Regulation Section 301.7701-3(c) (a US Tax Election), effective prior to the Closing Date, to be treated for U.S. federal income tax purposes as a partnership or disregarded entity (an Elected Subsidiary) provided that if a US Person is a shareholder in any such Elected Subsidiary, the relevant US Tax Election shall be subject to the prior written consent of the Management Sellers (such consent not to be unreasonably withheld, conditioned or delayed, provided that such consent may not be reasonably withheld if the Purchaser agrees to pay on demand to each US Person that has been identified by the Company as a shareholder of such Elected Subsidiary pursuant to clause 6.1.4 an amount equal to any additional liability to Tax imposed on such US Person (and to make such US Person whole for such Tax) solely as a result of or in consequence of the making of the relevant US Tax Election with respect to such Elected Subsidiary). 6.1.4 The Company undertakes to the Purchaser to procure that, following receipt of a written request from the Purchaser in respect of a US Tax Election, each Group Company mentioned in such written request promptly, and in any event within 10 Business Days of such request, provides a list of any US Person who is a shareholder in any such Group Company. The Management Sellers shall cooperate with the Purchaser and the Company in relation to the matters set forth in clause 6.1.3 and this clause 6.1.4. 6.1.5 Without prejudice to the generality of clause 6.1.1 and subject to clause 6.1.6, each of the Management Sellers and the Company shall procure (so far as it is within their respective capacity and authority to do so), to the extent permissible in accordance with Applicable Law, that, between the date of this Agreement and Closing, each Group Company shall not, except as expressly permitted by this Agreement or as may be required to give effect to and to comply with this Agreement, carry out any of the actions listed in Schedule 7, without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned. For the purposes of this clause 6.1.5: (i) the parties acknowledge that each of [***] shall be authorised to provide written consent for and on behalf of the Purchaser; and (ii) each Investor Seller shall exercise all relevant rights it has as a shareholder and/or through its appointed director(s) or otherwise pursuant to the Existing Shareholders' Agreement so as not to vote in favour of or permit any act or omission that they reasonably understand would constitute a breach of any of the actions listed in Schedule 7. 6.1.6 Notwithstanding anything to the contrary in clause 6.1.3, or any other provision of this Agreement or any other Transaction Document, none of the Sellers, the Company or any member of the Group shall be prevented from undertaking, be required to obtain the Purchaser’s consent in relation to, or incur any liability as a result of effecting, any of the following on or prior to Closing: (a) any matter required by Applicable Law or necessary to comply with written requests of Relevant Authorities; (b) the implementation of any transaction or the taking of any action provided for by any Transaction Document (other than the Disclosure Letter) or requested to be implemented or taken by the Purchaser; (c) the execution of a legally binding contractual obligation existing as at the date of this Agreement if the relevant contractual obligation has been Fairly Disclosed in the Disclosure Letter; (d) the incurrence or making of any Permitted Leakage;

 
- 28 - (e) those matters set out in Schedule 12; (f) the planned change of company name of RedRiff Agency Limited to RedRiff Underwriting Limited and related Companies House filing; or (g) any matter reasonably undertaken by any of the Sellers or any member of the Sellers' Group in an urgent situation for the Group’s business (including an emergency or disaster situation) with the intention of minimising any adverse effect on the Group. 6.2 Repurchase of H Shares 6.2.1 Each Seller shall (and shall procure, to the extent it is reasonably within its capacity and authority to do so, that the Company shall) execute the relevant H Share Repurchase Documents (or, as applicable, pass the relevant resolutions in those H Share Repurchase Documents) in order to give effect to the repurchase by the Company and cancellation, immediately prior to Closing, of [***] as at the date of this Agreement (together the H Share Repurchase) in accordance with the Articles and the Shareholders' Agreement, and for these purposes each Seller shall be deemed to have provided its prior written consent to, and waived any and all rights of pre- emption, rights of first offer, rights of first refusal or any other right in respect of, the transfer of such H Shares pursuant to the H Share Repurchase whether arising under the Articles, the Shareholders' Agreement or otherwise. 6.2.2 Following the H Share Repurchase and prior to Closing, the Management Representative shall procure that the Company shall carry out all filings required at Companies House in order to give notice of the H Share Repurchase (including the cancellation of the relevant H Shares). 6.2.3 [***] 6.3 Conversion of Sale Shares 6.3.1 Each Seller shall procure that: (i) the Conversion Resolutions shall be duly passed in order to give effect to the conversion, immediately prior to Closing and following the H Share Repurchase, of each class of Shares (including all Sale Shares) into a single new ordinary share class (the Conversion and the New Ordinary Shares) in accordance with the Articles and the Shareholders' Agreement; and (ii) the Conversion occurs prior to Closing. 6.3.2 Following the Conversion and prior to Closing, the Sellers shall procure that the Company shall issue share certificates each Seller in respect of: (a) each Seller's Sale Shares; and (b) any Shares that are not Sale Shares that any relevant Seller shall continue to hold upon Closing. 6.4 MIP [***]

 
- 29 - 7. CLOSING STATEMENT 7.1 No later than five Business Days before Closing, the Sellers' Representatives shall deliver to the Purchaser a draft of the Closing Spreadsheets and a statement (the Closing Statement) setting out, among other things: 7.1.1 the amount of the Fixed Consideration; 7.1.2 the amount of the Variable Consideration; 7.1.3 the amount of the Consideration that comprises the Cash Consideration; 7.1.4 the amount of the Consideration that comprises the Consideration Stock; 7.1.5 details of the Paraline Account; 7.1.6 details of the Colemont Account; 7.1.7 details of the BCC Account; 7.1.8 details of the Management Seller Accounts; 7.1.9 the aggregate Pre-Closing Specified Leakage Amount; 7.1.10 any costs and expenses paid or incurred by the Company in connection with the Transaction up to Closing, including the preparation, negotiation, entry into and completion of the Transaction Documents; and 7.1.11 a statement setting out: (a) the number of Shares (other than Sale Shares) which are legally and/or beneficially held by or on behalf of each Seller after the date of this Agreement; (b) the Pre-Closing Specified Leakage Amount (if any) for each relevant Seller; and (c) the Consideration payable to each Seller (including, in respect of the Continuing Sellers, the split of Consideration between Cash Consideration and Consideration Stock), provided that such allocation corresponds with the Cash Proportions and Stock Proportions. 7.2 The Purchaser may, within five Business Days of receipt of the draft Closing Spreadsheets and Closing Statement, provide comments on the draft Closing Spreadsheets and/or the Closing Statement. To the extent the Purchaser provides comments, the draft Closing Spreadsheets and/or the Closing Statement (as applicable) shall only become binding once agreed between the parties. 7.3 If Closing is deferred in accordance with the terms of this Agreement and the draft Closing Spreadsheets and the Closing Statement have been delivered to the Purchaser in accordance with clause 7.1, then the Sellers' Representatives shall deliver a revised draft Closing Spreadsheets and revised Closing Statement to the Purchaser in accordance with clause 7.1 and the previously submitted draft Closing Spreadsheets and Closing Statement shall not apply. 7.4 Subject to clause 7.2, following the delivery of the final Closing Spreadsheets and Closing Statement, the Consideration shall be deemed to be updated to reflect the relevant amounts

 
- 30 - detailed in the Closing Statement and shall be final and binding on the Sellers, provided that the Closing Statement shall not override, or be deemed to amend, any provision in this Agreement. 7.5 Save as determined by the board of the Company, each Management Seller and each Individual Seller agrees that he or she shall only be entitled to see and/or receive a copy of the information set out in the Closing Statement to the extent such information relates to him or her and the parties acknowledge and agree that the Closing Statement shall be redacted accordingly for the purposes of any disclosure to each Management Seller and each Individual Seller. 8. CLOSING 8.1 Date Closing shall take place, following fulfilment of the final remaining Condition or, if applicable, waived and after the Closing Statement has been finalised (the Condition Fulfilment Date) on: 8.1.1 if the Condition Fulfilment Date occurs during the first five calendar days of a calendar month, the fifth Business Day falling five Business Days after the Condition Fulfilment Date and with effect from the first Business Day of that calendar month, save that the Variable Consideration will be calculated up to the actual date on which Closing occurs; or 8.1.2 if the Condition Fulfilment Date occurs after the first five calendar days of a calendar month, then the first Business Day of the following calendar month; or 8.1.3 such other date as may be agreed between the Purchaser and the Sellers' Representatives. 8.2 Closing Events On Closing, the parties shall comply with their respective obligations specified in Schedule 3. The Sellers' Representatives may waive some or all of the obligations of the Purchaser as set out in Schedule 3 (provided that the consent of a Seller shall be required if such waiver has a disproportionate impact on that Seller when compared with the other Sellers) and the Purchaser may waive some or all of the obligations of the Sellers as set out in Schedule 3. 8.3 Consideration Stock No later than three Business Days prior to the Closing, the Sellers' Representatives shall deliver to the Purchaser a table in the form of Part 2 of Schedule 1 identifying each Continuing Seller and the number of shares of Consideration Stock to be received, as calculated in accordance with their Stock Proportion pursuant to clause 3.6.1(b). 8.4 Payment on Closing On Closing: 8.4.1 the Purchaser shall pay the Cash Consideration (less the amount, if any, equal to any Pre-Closing Specified Leakage Amount(s)) in cleared funds to the bank accounts designated by the Sellers' Representatives in accordance with clause 19.7, in such amounts as shown in the Closing Statement, and procure the issue by Ambac of the Consideration Stock in accordance with clause 3.6.1(b); and

 
- 31 - 8.4.2 Ambac shall deliver to the Continuing Sellers a book-entry statement from the Transfer Agent evidencing the number of shares of Consideration Stock set forth beside each Continuing Seller’s name as calculated in accordance with clause 3.6.1(b) and indicated in the form set out in Part 2 of Schedule 1, registered in the name of such Continuing Seller (or its nominee in accordance with its delivery instructions). 8.5 When Closing shall have taken place Closing shall have taken place once all obligations referred to in clauses 8.2 and 8.3 and Schedule 3 have been fulfilled and each Seller has received the Cash Consideration and Consideration Stock due to it under clauses 8.2 and 8.3 and Schedule 3. 8.6 Sale and Purchase of all of the Sale Shares 8.6.1 The Purchaser shall not purchase any of the Sale Shares pursuant to this Agreement unless the Sellers sell all of the Sale Shares on Closing. 8.6.2 The Sellers shall not sell any of the Sale Shares pursuant to this Agreement unless the Purchaser purchases all of the Sale Shares on Closing. 8.7 Breach of Closing Obligations If a party fails to comply with any material obligation in clauses 8.2 and 8.3 and paragraph 2 of Schedule 3 (which shall include a failure by the Purchaser to pay any of the Consideration), the Purchaser, in the case of non-compliance by the Sellers, or the Sellers' Representatives, in the case of non-compliance by the Purchaser, shall be entitled (in addition to and without prejudice to all other rights and remedies available but subject to a cure period of one month following the date of the relevant default, not to extend beyond the Long Stop Date) by written notice to the other party: 8.7.1 to terminate this Agreement (other than the Surviving Clauses) without liability on its part (or the part of those on whose behalf such notice is served); or 8.7.2 to effect Closing so far as practicable having regard to the defaults which have occurred; or 8.7.3 to fix a new date for Closing (being not more than 20 Business Days after the agreed date for Closing) in which case the provisions of Schedule 3 shall apply to Closing as so deferred but provided that such deferral may only occur once, provided that if the Purchaser terminates this Agreement pursuant to clause 8.7.1, the Company shall pay, without prejudice to any other remedies the Purchaser may have against the breaching party, to the Purchaser an amount of £3,500,000 within 10 days of such termination. 9. LEAKAGE 9.1 Warranty and Undertaking Each of the Sellers severally: 9.1.1 warrants in respect of itself, himself or herself, as applicable, to the Purchaser that from (but excluding) the Locked Box Accounts Date to (and including) the date of this Agreement, there has been no Leakage; and

 
- 32 - 9.1.2 undertakes in respect of itself, himself or herself, as applicable, to the Purchaser to procure that there will be no Leakage to or for the benefit of such Seller or any member of the Seller's Group from the day after the date of this Agreement to the Closing Date and to immediately inform the Purchaser of any Leakage or any fact or event they become aware of that might constitute or result in Leakage, provided that the Sellers shall have no liability to the Purchaser under this clause 9.1 or clause 9.2 if Closing does not occur. 9.2 Leakage Indemnity Subject to clause 9.3, if any Leakage occurs which has not been deducted from the Consideration under clause 3.7 or otherwise repaid or credited prior to Closing then, following Closing, each Seller in receipt of the benefit of the relevant Leakage (whether directly or through a member of such Seller’s Group) shall pay to the Purchaser on demand an amount in cash equal to such Leakage, the benefit of which has been received by such Seller or members of its Seller’s Group. 9.3 Limitations on Leakage Claims 9.3.1 Save in the case of fraud and fraudulent misrepresentation, the aggregate liability of each Seller in respect of any Leakage Claim shall not exceed an amount equal to such Leakage. 9.3.2 No Seller shall be liable for any Leakage Claim unless a notice of the Leakage is given by the Purchaser to the relevant Sellers' Representative within nine months following Closing. Such notice shall specify in reasonable detail (in each case to the extent available to the Purchaser) the legal and factual basis of the Leakage Claim and evidence on which the Purchaser relies and the Purchaser's estimate of the amount of Leakage which is the subject of the Leakage Claim and which Seller(s) have received the benefit of the Leakage in question. 9.3.3 Any Leakage Claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn six months after the notice is given pursuant to clause 9.3 unless legal proceedings in respect of it have been commenced by being both issued and served. No new Leakage Claim may be made in respect of the facts, matters, events or circumstances giving rise to any such withdrawn Leakage Claim. 10. TRANSACTION BONUSES [***] 11. WARRANTIES 11.1 The Sellers' warranties and undertakings 11.1.1 Each Seller severally warrants to the Purchaser that each of the Fundamental Warranties (and, in the case of Fundamental Warranties relating to Sale Shares, in respect of their Sale Shares only) is true and accurate in all respects as at the date of this Agreement and, by reference to the matters, facts, events or circumstances then subsisting, immediately prior to Closing as if any reference to "the date of this Agreement" in such Fundamental Warranties is instead a reference to "the Closing Date".

 
- 33 - 11.1.2 Subject to clause 11.2, each of the Management Sellers severally warrants to the Purchaser that each Business Warranty is true and accurate in all respects, so far as each such Management Seller is aware, as at the date of this Agreement. 11.1.3 Notwithstanding anything to the contrary in this Agreement, the term "so far as the Management Sellers are aware" or any similar expression shall, unless otherwise stated, be deemed to refer to the actual knowledge of each of the Management Sellers, having made reasonable enquiry of each other. Actual awareness and knowledge shall expressly exclude any implied, imputed or constructive knowledge of any Management Seller. 11.1.4 Each of the Warranties is separate and independent and is not limited by reference or inference to any other Warranty, any term of this Agreement or any other Transaction Document. 11.1.5 Each of the Continuing Sellers acknowledges and agrees that the Consideration Stock to be issued pursuant to this Agreement has not been registered under the Securities Act. Each of the Continuing Sellers understands that the Consideration Stock constitutes "restricted securities" under applicable federal securities laws of the United States and that, pursuant to these laws, such Continuing Seller must hold the Consideration Stock indefinitely unless the Consideration Stock is registered with the Commission, or an exemption from such registration and qualification requirements is available. Each of the Continuing Sellers further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Consideration Stock and on requirements relating to Ambac which are outside of the Continuing Seller’s control, and which Ambac may not be able to satisfy. 11.1.6 Each of the Continuing Sellers hereby severally represents and warrants that (i) it is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (ii) has such knowledge, skill and experience in business, financial and investment matters that it is capable of evaluating the merits and risks of its acquisition of the Consideration Stock and (iii) has had the opportunity to consult its own legal and professional advisers, to the extent it has deemed appropriate, and has made its own legal, tax, accounting, and financial evaluation of the merits and risks of an acquisition of the Consideration Stock. 11.1.7 Each of the Continuing Sellers severally acknowledges and agrees that, for the duration of the twelve-month period following the issuance of the Consideration Stock to the Continuing Sellers (the Lock-up Period) and without the prior written consent of Ambac, such Continuing Seller will not, and will not cause or direct any of its affiliates to, offer, pledge, sell, or otherwise transfer or dispose of, directly or indirectly, any shares of Consideration Stock, other than (A) transfers of shares of Consideration Stock as a bona fide gift or gifts or to a charitable organisation in a transaction not involving a disposition for value; (B) transfers, distributions or dispositions of shares of Consideration Stock to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act) of such Continuing Seller or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with such Continuing Seller or its affiliates (including, for the avoidance of doubt, where such Continuing Seller is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such general partnership, partnership or fund), or as part of a distribution, transfer or disposition without consideration to direct or indirect members, shareholders, partners, beneficiaries or other equity holders of such Continuing Seller (excluding, in any event, portfolio

 
- 34 - companies as that term is commonly understood in the private equity industry), or to any member of the immediate family of such Continuing Seller or any trust for the direct or indirect benefit of the undersigned or the immediate family of such Continuing Seller in a transaction not involving a disposition for value; (C) transfers or dispositions of shares of Consideration Stock or other securities to any corporation, partnership, limited liability company or other entity, in each case, all of the beneficial ownership interests of which are held by such Continuing Seller or the immediate family of such Continuing Seller in a transaction not involving a disposition for value; (D) transfers or dispositions of shares of Consideration Stock or other securities (x) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of such Continuing Seller upon the death of the Continuing Seller, or (y) by operation of law pursuant to a domestic order or negotiated divorce settlement; (E) transfers or dispositions of shares of Consideration Stock pursuant to a bona fide tender offer for shares of Ambac’s capital stock, merger, consolidation or other similar transaction made to all holders of Ambac’s securities involving the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of Ambac’s voting securities if, after such transfer, such person or group of affiliated persons would hold at least 50% of the outstanding voting securities of Ambac, provided that in the case of (A) through (D) above, the relevant transferee agreed to be bound by the Lock-Up Period. 11.2 The Purchaser's warranties and undertakings 11.2.1 The Purchaser warrants to each of the Sellers as at the date of this Agreement that: (a) the execution and delivery by the Purchaser of this Agreement and the Transaction Documents (to which it is party), and compliance with their respective terms, shall not breach or constitute a default under its articles of association, or any other agreement or instrument to which it is a party or by which it is bound, and shall not constitute a breach under any Applicable Law or other restriction applicable to it; (b) has, where relevant, taken or will have taken by Closing all corporate action required to authorise it to enter into and to perform this Agreement and the other Transaction Documents; (c) it has the legal right and full power and authority to enter into and perform this Agreement and the other Transaction Documents (to which it is party) to be executed by it and such documents will, when executed, constitute valid and binding obligations on the Purchaser, in accordance with their respective terms; (d) save for the Conditions, no consent, approval, authorisation or order of any court or governmental, regulatory or other authority which has not been obtained or made at the date of this Agreement is required by it where failure to obtain such consent, approval, authorisation or order would materially and adversely affect such its ability to enter into and perform its obligations under this Agreement and the Transaction; (e) no order has been made and no resolution has been passed for its winding up or for a liquidator to be appointed in respect of it and no petition has been presented and no meeting has been convened for the purpose of its winding up (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto);

 
- 35 - (f) no administration order has been made and no petition for such an order has been presented in respect of it (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); (g) no receiver (which expression shall include an administrative receiver) or analogous officer or official in any jurisdiction has been appointed in respect of it or in respect of all or any material part of its assets (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); (h) it is not, nor is deemed to be, insolvent or unable to pay its debts within the meaning of laws relating to insolvency applicable to it; (i) no moratorium has been sought or been granted in respect of it within the meaning of laws relating to insolvency applicable to it; and (j) no voluntary arrangement has been proposed with its creditors in respect of it within the meaning of laws relating to insolvency applicable to it. 11.2.2 The warranties set out in clause 11.2.1 shall be deemed to have been repeated immediately prior to Closing as if the reference to "the date of this Agreement" in such clause is instead a reference to "the Closing Date". 11.2.3 At or prior to the signing of this Agreement, the Purchaser shall deliver to the Sellers’ Representatives a copy of the Debt Commitment Papers executed by the debt financing sources party thereto (and the Purchaser undertakes to countersign such Debt Commitment Papers (or any amended, restated or replacement Debt Commitment Papers to the extent permitted under this clause 11 prior to any deadline for countersignature specified therein)). 11.3 Ambac's warranties and undertakings 11.3.1 Ambac warrants to each of the Sellers as at the date of this Agreement that: (a) the execution and delivery by Ambac of this Agreement and the Transaction Documents (to which it is party), and compliance with their respective terms, shall not breach or constitute a default under its articles of association, or any other agreement or instrument to which it is a party or by which it is bound, and shall not constitute a breach under any order, judgment, decree or other restriction applicable to it; (b) it has the legal right and full power and authority to enter into and perform this Agreement and the other Transaction Documents (to which it is party) to be executed by it and such documents will, when executed, constitute valid and binding obligations on Ambac, in accordance with their respective terms; (c) save for the Conditions, no consent, approval, authorisation or order of any court or governmental, regulatory or other authority which has not been obtained or made at the date of this Agreement is required by it where failure to obtain such consent, approval, authorisation or order would materially and adversely affect such its ability to enter into and perform its obligations under this Agreement and the Transaction; (d) no order has been made and no resolution has been passed for its winding up or for a liquidator to be appointed in respect of it and no petition has been

 
- 36 - presented and no meeting has been convened for the purpose of its winding up (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); (e) no administration order has been made and no petition for such an order has been presented in respect of it (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); (f) no receiver (which expression shall include an administrative receiver) or analogous officer or official in any jurisdiction has been appointed in respect of it or in respect of all or any material part of its assets (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); (g) it is not, nor is deemed to be, insolvent or unable to pay its debts within the meaning of laws relating to insolvency applicable to it; (h) no moratorium has been sought or been granted in respect of it within the meaning of laws relating to insolvency applicable to it; (i) no voluntary arrangement has been proposed with its creditors in respect of it within the meaning of laws relating to insolvency applicable to it; (j) the issuance of the Consideration Stock has been duly authorized, and the Consideration Stock, when issued and paid for in accordance with the terms of this Agreement, will be duly and validly issued, fully paid and nonassessable and free and clear of any encumbrances, preemptive rights or restrictions (other than any restrictions on transfer generally imposed under applicable securities laws): (k) it intends to issue the shares of Consideration Stock in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 506 of Regulation D under the Securities Act, or Section 4(a)(2) of the Securities Act, and in reliance on exemptions from the registration or qualification requirements of state securities or “blue sky” laws; and (l) it has filed or furnished, as applicable, on a timely basis all forms, statements, schedules, certifications, reports and other documents required to be filed or furnished by it with the Commission under the Exchange Act or the Securities Act during the past twelve calendar months (collectively, and in each case including all exhibits and schedules thereto and documents incorporated by reference therein, the SEC Reports). As of the time it was filed with the Commission (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be) and as of the time they were filed, none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the Commission with respect to any of the SEC Reports.

 
- 37 - 11.3.2 The warranties set out in clause 11.3.1 shall be deemed to have been repeated immediately prior to Closing. 11.3.3 Ambac undertakes to each of the Continuing Sellers that promptly following the expiry of the Lock-up Period (and in no event later than three Business Days following the expiry of the Lock-up Period), Ambac shall remove all restrictive legends, including the legend set forth in clause 3.6.2 above, and shall, upon request of any Continuing Seller or Ambac’s transfer agent, provide an opinion of counsel permitting such removal. Further, Ambac shall remove all restrictive legends, including the legend set forth in clause 3.6.2 above, (i) following any sale of such Consideration Stock pursuant to Rule 144 or any other applicable exemption from the registration requirements of the Securities Act of 1933, or (ii) upon request, if such Consideration Stock is eligible for resale under Rule 144(b)(1) or any successor provision. Without limiting the foregoing, upon request of the Continuing Sellers, or any of them, and receipt by Ambac of an opinion of counsel reasonably satisfactory to Ambac to the effect that such legend is no longer required under the Securities Act and applicable state securities laws, Ambac shall use its reasonable best efforts promptly (and in no event later than five Business Days following the date on which of such request and opinion of counsel have both been received) to cause the legend to be removed from any book-entry statements for the Consideration Stock in accordance with the terms of this Agreement and deliver, or cause to be delivered, to any Continuing Seller new book-entry statements representing the Consideration Stock that are free from all restrictive and other legends or, at the request of such Continuing Seller, via DWAC transfer to such Continuing Seller’s account. 11.4 Financial Capability 11.4.1 Purchaser has delivered to the Sellers true, complete and correct copies of the Debt Commitment Papers from the lenders party thereto (collectively, the “Lenders”) and the arrangers party thereto, pursuant to which the Lenders have committed, subject to the terms and conditions set forth therein, to provide to Purchaser the Debt Commitments. 11.4.2 As of the date hereof, the Debt Commitment Papers have not been amended, modified, terminated or withdrawn; provided that the existence or exercise of “market flex” provisions contained in the Debt Fee Letters, shall not constitute an amendment or modification of the Debt Commitment Papers. 11.4.3 As of the date hereof, the Debt Commitment Papers are in full force and effect and constitute the legal, valid and binding obligations of Purchaser and, to the knowledge of Purchaser, the Lenders, in each case, except as limited by the application of bankruptcy, insolvency, reorganisation, moratorium and similar Applicable Laws relating to or affecting creditors’ rights or to general principles of equity. 11.4.4 As of the date hereof, there are no other legally binding agreements, side letters or arrangements relating to the Debt Financing (other than the Debt Commitment Papers and the Debt Fee Letters) among the parties thereto that would reasonably be expected to materially and adversely affect the availability of the Debt Financing. 11.4.5 As of the date hereof, the Debt Financing is subject to no conditions precedent other than those set forth in the Debt Commitment Papers and the Debt Fee Letters. 11.4.6 As of the date hereof, to the knowledge of Purchaser, assuming the accuracy of the Warranties set forth in Clause 11.1, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default

 
- 38 - or breach by Purchaser under the Debt Commitment Papers that would reasonably be expected to adversely affect the availability of the Debt Financing. 11.4.7 Assuming the funding in full of the Debt Financing on the Closing Date, the accuracy of the Warranties set forth in Clause 11.1 and the performance by the Purchaser of its obligations under this Agreement, including the obligations set forth in Clause 11.2, as of the date hereof, Purchaser will have on the Closing Date sufficient funds to pay all obligations of Purchaser hereunder due on the Closing Date and any fees and expenses required to be paid by the Purchaser in connection with Closing and/or the Debt Financing. 11.4.8 The Company shall comply with the obligations set out in Schedule 9. 11.5 Sellers' Disclosures The Purchaser shall not be entitled to make any Claim in relation to the Business Warranties to the extent that the matter which is the subject of the relevant Claim is Fairly Disclosed in this Agreement and/or the Disclosure Letter. 11.6 The Sellers' and Purchaser's Waiver of Rights against the Group 11.6.1 Save in the case of fraud, each Seller waives (for the benefit of the Purchaser and the Group Companies and their respective directors, officers, employees and agents) any rights, remedies or claims which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Group Companies or their respective directors, officers, employees or agents in connection with assisting each Seller in the giving of any Sellers' Warranty or the preparation of the Disclosure Letter, the Data Room and the Restricted Data Room. 11.6.2 Save in the case of fraud and in respect of claims relating to employment agreements of the Management Sellers, each Seller waives (for the benefit of the Purchaser and the Group Companies and their respective directors, officers, employees and agents) any rights, remedies or claims which it may have against any Group Company or their respective directors, officers, employees or agents. 11.6.3 Without prejudice to the terms of the Transaction Documents and subject to clause 11.6.4 below, save in the case of fraud the Purchaser waives and, from Closing, shall procure that each Group Company shall waive (for the benefit of the Group Companies and their respective directors, officers, employees and agents) any rights, remedies or claims which it may have in respect of: (a) any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Group Companies or their respective directors, officers, employees or agents in connection with assisting each Seller in the giving of any Sellers' Warranty or the preparation of the Disclosure Letter, the Data Room and the Restricted Data Room; or (b) any breach of directors' duties by a director of the Company arising as a result or in connection with the Company complying with the terms of this Agreement. 11.6.4 The waiver of rights by the Purchaser pursuant to clause 11.6.3 shall be without prejudice to any rights, remedies or claims which it may have against the Group Companies' directors, officers, employees and agents in their capacity as Sellers under this Agreement.

 
- 39 - 11.7 Purchaser’s Debt Undertakings 11.7.1 Purchaser undertakes that its obligations under this Agreement are not subject to any conditions regarding the Purchaser’s, or any other person’s, ability to obtain financing for the consummation of the Transaction. For the avoidance of doubt, if any Debt Financing (as defined below) has not been obtained, Purchaser will nonetheless be obliged to perform its obligations under Clause 3 and Clause 8 and consummate the Transaction in accordance with the terms of this Deed. 11.7.2 The Purchaser undertakes that it has, and will have at Closing, the necessary cash resources and/or debt commitments provided (including under the Debt Commitment Letter and any convertible notes or other debt instrument issued in lieu thereof) (such debt commitments and/or any convertible notes or other debt instrument issued in lieu thereof being the “Debt Financing”) which together are sufficient to meet its obligations under this Agreement to pay the Cash Consideration. 11.7.3 The Purchaser undertakes to the Sellers that it will not, without the prior written consent of the Sellers (such consent not to be unreasonably, withheld, conditioned or delayed), terminate or amend or vary any term or condition of the Debt Commitment Papers including, for the avoidance of doubt, the agreements provided to the Seller pursuant to Clause 11.7.6 (it being understood that the exercise of any “market flex” provisions contained in the Debt Fee Letters shall be deemed not to be an amendment or variation) in any manner which would materially adversely affect the Purchaser’s ability to fulfil its payment obligations on Closing pursuant to this Agreement or which would make the availability at Closing of the funds under the Debt Commitment Papers less certain or subject to any additional conditions, provided that, the Purchaser may replace, restate, supplement, modify, assign, substitute or amend the Debt Commitment Papers to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) so long as such addition or replacement would not affect the availability of the total amount of the Debt Financing on the Closing Date. Upon any such amendment, supplement or other modification of, or waiver under, the Debt Commitment Papers in accordance with this Clause 11.7.3, the term “Debt Commitment Papers” shall mean such Debt Commitment Papers as so amended, supplemented, modified or waived. 11.7.4 The Purchaser shall use all reasonable endeavours to: (a) maintain in effect the Debt Commitment Papers (subject to the right of Purchaser to replace, restate, supplement, modify, assign, substitute or amend the Debt Commitment Papers in accordance with Clause 11.7.3); (b) enter into definitive agreements with respect to the Debt Commitment Papers (such definitive agreements being referred to as the “Debt Financing Agreements”) on terms and conditions no less favorable to the Purchaser than those contained in the Debt Commitment Papers and the Debt Fee Letters (subject to any such “market flex” provisions contained in the Debt Fee Letters) and maintain in effect the Debt Financing Agreements if entered into prior to Closing; (c) satisfy, and use all reasonable endeavours to cause the Debt Financing Sources to confirm the satisfaction, on a timely basis, or obtain the waiver of, all conditions applicable to the Purchaser contained in the Debt Commitment Papers (or any definitive agreements related thereto);

 
- 40 - (d) consummate the Debt Financing contemplated by the Debt Commitment Papers, the Debt Financing Agreements and the Debt Fee Letters substantially concurrently with the Closing; and (e) enforce its rights under the Debt Commitment Papers or the Debt Financing Agreements to the extent necessary to ensure its compliance with its obligations under this Agreement. 11.7.5 The Purchaser shall notify the Sellers promptly of any fact, matter or circumstance that may cause any delay or impediment, directly or indirectly, to the Purchaser drawing down such amounts under the terms of the Debt Commitment Papers as shall be necessary to allow the Purchaser to comply with its obligations under Clause 8 and Schedule 3. 11.7.6 On the date of this Agreement, the Purchaser has delivered to the Sellers: (a) a copy of the Debt Commitment Papers, pursuant to which the Debt Financing Sources have committed, subject to the terms and conditions set forth therein, to provide to the Purchaser debt financing in the aggregate amount set forth therein in connection with the Transaction; (b) copies of the fee letters (the “Debt Fee Letters”) related to the Debt Commitment Papers, provided that the existence and/or amount of fees, flex provisions, pricing terms, pricing caps and other commercially sensitive numbers specified therein have been redacted; and (c) copies of letters duly executed by each lead arranger in respect of the Bridge Facility (as defined in the Debt Commitment Papers) to the Purchaser (or one of its Affiliates) confirming that, other than Closing occurring, all conditions precedent to drawdown of all debt finance to be provided to the Purchaser, for the purposes of the Transaction have been satisfied or are under the Purchaser’s (or one of its Affiliates’) control or in agreed form and will be satisfied at Closing. 12. LIMITATION OF LIABILITY 12.1 Time Limitation for Claims The Sellers shall not be liable for any Claim unless a notice of the Claim is given by the Purchaser to the Sellers' Representatives specifying the matters giving rise to the Claim: 12.1.1 in the case of a Claim in respect of the Tax Warranties or the Tax Deed or a claim under clauses 3.4.2 or 6.2.3, within seven years following Closing; 12.1.2 in the case of a Claim in respect of the Fundamental Warranties, within four years following Closing; 12.1.3 in the case of any other Claim, within 18 months following Closing. 12.2 Time Limitation for claims under clauses 6 and 13 12.2.1 Each of the Management Sellers and the Company shall not be liable for any claim for breach of the pre-Closing obligations in clause 6 unless a notice of the claim is given by the Purchaser to the relevant party within 18 months following Closing.

 
- 41 - 12.2.2 The Restricted Sellers shall not be liable for any claim for breach of the protective covenants in clause 13 unless a notice of the claim is given by the Purchaser to the relevant Sellers' Representatives within the earlier of (i) six months following the Purchaser become actually aware of such potential claim and (ii) six months following the expiry of the Restricted Period. 12.3 Process for Claims 12.3.1 The Purchaser shall give notice in writing of any Claim to the Sellers' Representatives as soon as reasonably practicable and, in any event, within 30 Business Days of the Purchaser becoming actually aware of such potential Claim. 12.3.2 Notice of a Claim shall be given by the Purchaser to the Sellers' Representatives within the time limits specified in clause 12.1 and shall include the relevant facts and circumstances the Purchaser is aware of giving rise to the Claim (including the Purchaser's estimate, on a without-prejudice basis, of the amount of the Claim) and, in the case of a Claim for breach of any Sellers' Warranties, the specific Sellers' Warranties alleged to have been breached. 12.3.3 Failure to provide the information specified in clause 12.3.2 shall not affect the right of the Purchaser to make a Claim (provided that the Purchaser has given valid notice of a Claim in accordance with clause 12.3.1), but that failure shall be taken into account in determining the liability of the relevant Seller for such Claim to the extent that the relevant Seller establishes that it was materially prejudiced by such failure. 12.4 Maximum Liability 12.4.1 The aggregate liability of the Sellers in respect of all Claims (and for the avoidance of doubt Losses relating thereto) shall, excluding any Fundamental Warranty Claim, not exceed £1 (the Maximum Liability Limit), with each Seller's liability not to exceed such percentage of that amount corresponding with the prorated amount of total Consideration to be received by such Seller under this Agreement. The Purchaser acknowledges that such limit shall apply notwithstanding the terms of the W&I Policy and any subsequent non-payment under the W&I Policy or any vitiation or expiry or termination of the W&I Policy or insolvency of the underwriters or any other provisions of this Agreement or for any other reason whatsoever (other than in respect of fraud by any relevant Seller). 12.4.2 The aggregate liability of the Sellers in respect of all Fundamental Warranty Claims (and for the avoidance of doubt Losses relating thereto) shall not exceed, for each Seller, the prorated amount of total Consideration to be received by such Seller under this Agreement. 12.4.3 The aggregate liability of the Sellers in respect of all claims under clause 3.4.2 shall be £2,000,000. 12.4.4 The aggregate liability of the relevant Sellers in respect of all claims under clause 6.2.3 shall be £1,500,000. 12.4.5 Notwithstanding any other provision of this Agreement other than clause 9.2, the total aggregate liability of each Seller in respect of any and all claims under this Agreement shall not exceed an amount equal to the prorated amount of total Consideration to be received by such Seller under this Agreement.

 
- 42 - 12.5 Provision made in the Accounts The Sellers and the Company shall have no liability in respect of a Claim to the extent a provision, reserve or allowance has been made for it in the Accounts in respect of the matter or circumstances giving rise to the Claim. The parties agree that any damages awarded to the Purchaser in respect of a Claim may take into account the diminution in value of the Sale Shares. 12.6 No Double Recovery and no Double Counting No party may recover for breach of or under this Agreement, any Transaction Document or otherwise more than once in respect of the same Losses suffered or amount for which the party is otherwise entitled to claim (or part of such Losses or amount), and no amount (including any relief) (or part of any amount) shall be taken into account, set-off or credited more than once for breach of or under this Agreement, any Transaction Document or otherwise, with the intent that there will be no double counting for breach of or under this Agreement, any Transaction Document or otherwise. 12.7 Mitigation of Losses The Purchaser shall use its reasonable endeavours to take such reasonable steps as are within its control and to give all reasonable assistance to avoid or mitigate any Losses which in the absence of mitigation might give rise to a liability for any Claim. 12.8 Fraud, etc. None of the limitations contained in this clause 12 shall apply to a Seller in respect of any claim hereunder if and to the extent it arises or is increased as a result of fraud or fraudulent misrepresentation by: (i) such Seller; or (ii) any executive director, officer or employee of any Group Company involved in the preparation of the disclosures in the Disclosure Letter, provided that no Seller shall have any limitations on its liability disapplied in respect of the fraud or fraudulent misrepresentation of any other Seller. 12.9 Consequential loss, etc. The Sellers shall not be liable in respect of a Claim for any indirect, consequential or special damages, or for loss of or anticipated loss of profit, loss of or anticipated loss of revenue or loss of other business opportunity or goodwill, provided that this shall not operate to exclude liability for any Losses which are direct, reasonably foreseeable by the parties at the date of this Agreement, or considered to flow naturally from the relevant breach, which may include diminution of value of the Sale Shares. 12.10 Third Party Claims The Purchaser shall notify the Sellers’ Representatives of any claims, potential claim, matter or event against a Group Company which the Purchaser is aware constitutes a breach of any of the Warranties or otherwise give rise to a Claim (a Third Party Claim) as soon as reasonably practicable (and in any event within 10 Business Days of becoming aware of any such Third Party Claim) and consult with the Sellers’ Representatives in respect of such Third Party Claim and consider the Sellers’ Representatives’ reasonable requests and suggested course of action in respect thereof. 12.11 Recovery from Third Parties 12.11.1 If the Purchaser or any other member of the Purchaser's Group or any Group Company has at any time recovered or otherwise received a reimbursement from a

 
- 43 - third party (other than another Group Company or a Seller) in respect of any matter or circumstance giving rise to a Claim, Losses will be calculated also by reference to any amounts actually recovered from third parties. 12.11.2 If any Seller has paid an amount in discharge of any Claim, and the Purchaser or any other member of the Purchaser's Group or any Group Company subsequently recovers from a third party (whether pursuant to clause 12.11.1 or otherwise) a sum that indemnifies or compensates the Purchaser, any other member of the Purchaser's Group or another Group Company (in whole or in part) for Losses which are referable to the subject matter of such Claim, the Purchaser or the relevant other member of the Purchaser's Group or the relevant Group Company shall pay to the relevant Sellers as soon as practicable after receipt of such sum an amount equal to: (a) if the amount paid by the Sellers in respect of the Claim is more than the Sum Recovered, the Sum Recovered; and (b) if the amount paid by the Sellers in respect of the Claim is equal to or less than the Sum Recovered, the amount previously paid by the relevant Sellers to the Purchaser. 12.11.3 For the purposes of this clause 12.11, Sum Recovered means an amount equal to the total amounts recovered from the third party by the Purchaser (or the relevant prorated sum of such total amounts if the sum is recovered by a Group Company calculated by reference to the Purchaser's shareholding (whether directly or indirectly) in that Group Company from time to time), less: (a) all costs and expenses reasonably incurred by the Purchaser or the relevant Group Company in obtaining such recovery and the recovery from the Seller(s); and (b) any Taxation incurred (or which would have been incurred but for the availability of a relief from Tax) in effecting, or on receipt of, the recovery. 12.12 Retention and provision of information The Purchaser shall, and shall ensure that each Group Company shall retain all material documents, records, correspondence, accounts and other information whatsoever relevant to a matter which may give rise to a Claim. 12.13 Purchaser actions No Seller or the Company shall be liable for any Claim to the extent that it would not have arisen but for, or is increased or not reduced as a result of, any act, matter or thing done or omitted to be done: 12.13.1 by any member of the Purchaser's Group; 12.13.2 in breach of a Purchaser's obligation under this Agreement or any other Transaction Document; 12.13.3 after Closing (other than in order to comply with Applicable Law or pursuant to a legally binding commitment to which the Group was subject on or prior to Closing and which has been Fairly Disclosed);

 
- 44 - 12.13.4 in connection with any reorganisation, change in ownership or change in the nature of, or cessation or winding up of, the business of any member of the Purchaser's Group or any Group Company after Closing; 12.13.5 on or prior to Closing, by any member of the Sellers' Group, any Affiliate of any Seller or any Group Company with the prior written direction, request or approval of, the Purchaser or any other member of the Purchaser's Group; 12.13.6 pursuant to and in compliance with any of the Transaction Documents or by reason or in consequence of the execution and performance of any of the Transaction Documents; 12.13.7 pursuant to an admission of liability made in breach of the provisions of clause 12.15 by the Purchaser or by another member of the Purchaser's Group on or after Closing; 12.13.8 at the request of the Purchaser or any other member of the Purchaser's Group (or any person acting on behalf of the Purchaser or any other member of the Purchaser's Group) or with its approval. 12.14 Changes in Law and Practice No Seller shall be liable for any Claim to the extent that it would not have arisen but for, or has been increased or not reduced as a result of: 12.14.1 any change made after the Closing Date in the accounting, Taxation or commercial policies, practices or approaches of any Group Company (to the extent not required by Applicable Law in respect of that Group Company after the Closing Date); 12.14.2 the passing of, or any change in any Applicable Law (or any change in interpretation on the basis of case law), directive, rule, regulation, requirement or administrative practice of any government, governmental department, agency or regulatory body, including any increase in the rates of Tax or any imposition of Tax or any withdrawal of relief from Tax not actually (or prospectively) in effect at the date of this Agreement, after the date of this Agreement; 12.14.3 any Regulatory Requirements or other guideline, ordinance, code, policy, publication or other document, promulgation or communication issued, administered or enforced by any Relevant Authority which is not an Applicable Law issued on or after the date of this Agreement; or 12.14.4 any change after the date of this Agreement of any generally accepted interpretation or application of any legislation or accounting policies. 12.15 Purchaser's knowledge 12.15.1 The Sellers shall not be liable for any Claim if and to the extent that any member of the Purchaser's deal team specified at clause 12.15.2 below, is actually aware, having made reasonable enquiry of each other, at the date of this Agreement: (a) of the fact, matter event or circumstance which is the subject matter of the Claim; and (b) that the fact, matter, event or circumstance could reasonably be expected to give rise to a Claim,

 
- 45 - provided that actual awareness and knowledge for the purpose of this Clause shall expressly exclude any implied, imputed or constructive knowledge of any member of the Purchaser’s deal team. 12.15.2 For the purpose of clause 12.15.1, the relevant members of the Purchaser's deal team are Claude LeBlanc, David Trick, Steve Ksenak, Matthew Prendergast and Daniel McGinnis. 12.16 W&I Policy 12.16.1 The parties agree and acknowledge that: (a) the Purchaser has obtained the W&I Policy for the benefit of the Purchaser to cover losses arising from any Claim relating to the Business Warranties and/or the Tax Deed; (b) neither (i) any failure on the part of the Purchaser's Group to enter into, or to comply with, the terms of the W&I Policy, nor (ii) any unavailability of the W&I Policy or of recourse thereunder for whatever reason, shall create or increase any Seller's liability pursuant to or in relation to this Agreement or any of the Transaction Documents in any way; and (c) on Closing, the Sellers and the Purchaser shall each pay 50% of the cost of the W&I Policy. 12.16.2 The Purchaser undertakes to each Seller: (a) to procure that the W&I Policy includes an express waiver in the agreed form (in terms which have been approved in writing by the Sellers' Representatives prior to the entry into such W&I Policy) of any rights of subrogation (the Subrogation Provisions) which an insurer under the W&I Policy may otherwise have against a Seller; and (b) not to amend the Subrogation Provisions without the prior written consent of the Sellers' Representatives. 12.16.3 Subject to clause 12.16.4, the Purchaser acknowledges and agrees that: (a) its sole recourse against the Sellers for Claims (other than Fundamental Warranty Claims) pursuant to this Agreement and/or pursuant to the Tax Deed shall be capped at the Maximum Liability Limit and it shall rely on the W&I Policy for the payment of any damages or other amounts or payments under or in connection with a Claim relating to the Business Warranties and/or pursuant to the Tax Deed in excess of the Maximum Liability Limit; and (b) save as set out in 12.16.3(a) above, it shall have no right to, and shall not, commence or pursue any proceedings against a Seller in respect of a Claim relating to the Business Warranties and/or the Tax Deed (and hence the damages or payments (as the case may be) under or in connection with such a Claim will remain for the account of the Purchaser itself), save to the extent that a Claim arises against a Seller as a result of fraud or fraudulent misrepresentation on the part of that Seller (or the Company, as applicable). 12.16.4 The provisions of clause 12.16.3 shall apply irrespective of:

 
- 46 - (a) whether the W&I Policy is taken out; (b) any non-satisfaction of the conditions to the W&I Policy; (c) any non-compliance with the terms of the W&I Policy; (d) any exclusions or Business Warranties or covenants pursuant to the Tax Deed that are not, or not fully, insured under the W&I Policy; (e) any vitiation, expiry, defect or termination of the W&I Policy or non-payment of a claim under the W&I Policy; or (f) the insolvency of the insurer or any underwriter of the W&I Policy. 12.17 Limitation period Subject to clause 12.1, the parties agree that, notwithstanding that this Agreement is executed as a deed, no claim may be made by any person under or in connection with this Agreement after the expiry of seven years from the date on which the cause of action accrued. 13. PROTECTIVE COVENANTS 13.1 Each Restricted Seller severally undertakes to the Purchaser, and for the benefit of each Group Company, that during the Restricted Period such Restricted Seller shall not (and, in the case of any Restricted Seller which is a body corporate, shall procure that its Affiliates shall not) solicit or seek to employ or entice away, or endeavour to solicit or entice away, from the Company and/or any Subsidiary any Senior Employee, whether or not such person would commit any breach of their contract of service in leaving such employment. 13.2 During the period of one year following Closing, each Restricted Seller severally undertakes that it shall not (and, in the case of any Restricted Seller which is a body corporate, shall procure that its Affiliates shall not) knowingly hire, employ or engage any person who is at Closing a Senior Employee knowing such Senior Employee would be in breach of their applicable non-compete undertakings to the Group either as a result of such hiring, employment or engagement. In respect of Joseph (Jeff) Consolino and April Golda Joyce, the obligations in this clause 13.2 shall apply to them in their personal capacities only, and such Restricted Sellers shall not be required to procure any other person does not hire, employ or engage any Senior Employee where such Restricted Sellers have not been part of the process of hiring, employing or engaging a Senior Employee. 13.3 The placing of an advertisement of a post generally available to members of the public, recruitment of a person through an employment agency that is not directed at employees or officers of the Group and the employment of any person (other than a Senior Employee) as a result of such an advertisement or recruitment shall not constitute a breach of clause 13.1, provided that such Restricted Seller has not (and, in the case of any Restricted Seller which is a body corporate, its Affiliates have not) encouraged or advised such agency to approach any such person and has not otherwise breached this clause 13. 13.4 The parties confirm that they consider the restrictions contained in this clause 13 to be reasonable in all respects and necessary for the protection of the interests of the Purchaser and the Group, but if any of the restrictions is held to be invalid or ineffective, but would be valid and effective if some part of it were deleted, or some modification were made to its terms, then the restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.

 
- 47 - 13.5 In this clause 13: 13.5.1 Restricted Seller means each of [***]; and 13.5.2 Restricted Period means: [***] 14. ANNOUNCEMENTS, CONFIDENTIALITY AND PRIVILEGE 14.1 Announcements Other than the Announcement, no announcement, communication or circular in connection with the existence or the subject matter of this Agreement shall be made or issued by or on behalf of any member of the Sellers' Group or any member of the Purchaser's Group without the prior written consent of the Sellers' Representatives and the Purchaser (such consent not to be unreasonably withheld or delayed). This shall not affect any announcement, communication, or circular required by Applicable Law or any Relevant Authority or the rules of any stock exchange on which the shares of any party or its holding company are listed but the party with an obligation to make an announcement or communication or issue a circular (or whose holding company has such an obligation) shall consult with the other parties (or shall procure that its holding company consults with the other parties) insofar as is lawful and reasonably practicable before complying with such an obligation. 14.2 Confidentiality 14.2.1 Subject to clauses 14.1 and 14.2.2, each of the parties shall treat as strictly confidential and not disclose or use any information received or obtained as a result of entering into this Agreement (or any agreement entered into pursuant to this Agreement) which relates to: (a) the existence and the provisions of this Agreement, any Transaction Document and of any agreement entered into pursuant to this Agreement; (b) the negotiations relating to this Agreement, any Transaction Document and any agreement entered into pursuant to this Agreement; (c) (in the case of the Sellers) any information relating to the business, financial or other affairs (including future plans and targets) of the Purchaser's Group; or (d) (in the case of the Purchaser and only until Closing in respect of information relating to the Group) any information relating to the business, financial or other affairs (including future plans and targets) of the Group and any member of the Sellers' Group (and, in respect of BCC, any person who or which, directly or indirectly, controls, or is controlled by, or is under common control with BCC (including Bain Capital Credit LP, any funds managed or advised by it and/or any of their affiliates)). 14.2.2 Clause 11.2.1 shall not prohibit disclosure or use of any information if and to the extent: (a) the disclosure or use is required or advisable to be disclosed (on the advice of an attorney) by Applicable Law, any Relevant Authority or any stock exchange on which the shares of a party or its holding company are listed (including where this is required as part of any actual or potential offering, placing and/or

 
- 48 - sale of securities of any member of the Group, the Sellers' Group (and, in respect of BCC, any person who or which, directly or indirectly, controls, or is controlled by, or is under common control with BCC (including Bain Capital Credit LP, any funds managed or advised by it and/or any of their affiliates) or the Purchaser's Group)); (b) the disclosure or use is required for the purpose of any arbitral or judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement; (c) the disclosure is made to a Tax Authority or a Relevant Authority to the extent required or requested in connection with the Tax or regulatory affairs of the disclosing party; (d) the disclosure is made to a party to whom assignment is permitted under clause 19.4 on terms that such assignee undertakes to comply with the provisions of clause 14.2.1 in respect of such information as if it were a party to the Agreement; (e) the disclosure is made to an Investor Seller's managers, general partners, limited partners, current and/or prospective fund investors, professional intermediaries or otherwise as part of its normal internal or external regulatory reporting processes, communication processes and policies other than any information relating to the business, financial or other affairs (including future plans and targets) of the Purchaser's Group; (f) the disclosure is made to professional advisers (including auditors) or actual or potential financiers of any party on a need to know basis or to third parties and their professional advisers in the context of a possible acquisition or disposal transaction, on terms that such recipient is made aware of the confidentiality of the information and undertakes to comply with the provisions of clause 14.2.1 in respect of such information as if it were a party to the Agreement; (g) the information is or becomes publicly available (other than by breach of this Agreement); (h) the other parties (or in the case of disclosure by the Purchaser, the Sellers' Representatives) have given prior written approval to the disclosure or use; or (i) the information is independently developed after the date of this Agreement, provided that prior to disclosure or use of any information pursuant to clause 14.2.2(a) or 14.2.2(b), the party concerned shall, where not prohibited by Applicable Law, consult with the other parties (or in the case of disclosure by the Purchaser, the Sellers' Representatives) insofar as is reasonably practicable. 14.3 Privilege 14.3.1 The Purchaser acknowledges that: (a) RPC has acted as legal counsel to the Company and for certain of the Sellers in respect of the Transaction and the preparation and negotiation of this Agreement;

 
- 49 - (b) Appleby and Westmont Law have acted as legal counsel to the Company in respect of certain matters relating to the Transaction; and (c) Ropes & Gray LLP and Herbert Smith Freehills LLP have each acted as legal counsel to certain of the Sellers in respect of the Transaction, (such advisers, together with any other persons engaged by the Company or the Sellers or any of them to provide legal advice in respect of the Transaction, being the Firms and each a Firm). 14.3.2 The Purchaser agrees that (i) all communications involving legal professional privilege between the Sellers (or any of them), on the one hand, and any of the Firms, on the other hand, relating to the legal advice being given by the Firms to or for the benefit of the Sellers (as opposed to the Group) in respect of this Agreement and the Transaction (collectively, the Privileged Communications), shall be deemed to be privileged communications that belong solely to the Sellers and not to the Group notwithstanding the fact that any person associated with the Group who is not a Seller may have been a recipient of or copied on such communications or that such communications reside on the computer systems of the Group and (ii) each of the Firms shall have no duty to reveal or disclose any Privileged Communications to the Group by reason of any solicitor-client or attorney-client relationship between each of the Firms and the Group or otherwise. 14.3.3 The Purchaser agrees (i) not to use (and to cause the Purchaser’s Group not to use) any Privileged Communications for the purpose of asserting, prosecuting or litigating any claims against the Sellers or their Affiliates relating to this Agreement and the Transaction and (ii) to procure that the Group shall not disclose any Privileged Communications to any person following Closing, unless compelled to disclose by judicial or administrative process or by other requirements of law. 14.3.4 Without prejudice to clause 1.15.1, in clause 14.3.2: (a) any reference to legal professional privilege shall be construed as including attorney-client privilege and such other privilege which attaches to communications between client and legal adviser in any relevant jurisdiction which governs the provision of the relevant legal advice; and (b) any reference to privilege shall be construed as including attorney-client confidences and any other equivalent term in any relevant jurisdiction which governs the provision of the relevant legal advice. 14.3.5 Each Firm may rely on and enforce the provisions of this clause 14.3 as if it were a party to this Agreement. 15. GUARANTEE 15.1 Ambac guarantees to the Sellers the due and punctual performance, observance and discharge by the Purchaser of all the Guaranteed Obligations if and when they become performable or due under this Agreement. 15.2 If the Purchaser defaults in the payment when due of any amount to a Seller that is a Guaranteed Obligation Ambac shall immediately on demand by their relevant Sellers' Representative, unconditionally pay that amount to that Seller in the manner prescribed by this Agreement as if it were the Purchaser.

 
- 50 - 15.3 Ambac as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under clause 15.1 and clause 15.2, agrees to indemnify and keep indemnified the Sellers on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Sellers arising out of, or in connection with, the Guaranteed Obligations not being recoverable for any reason or any failure of the Purchaser to perform or discharge any of its obligations or liabilities in respect of the Guaranteed Obligations. 15.4 The guarantee in this clause 15 is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable by the Purchaser to the Sellers in respect of the Guaranteed Obligations, after allowance for any intermediate payment or discharge in full or in part of the Guaranteed Obligations. 15.5 The liability of Ambac under the guarantee in this clause 15 shall not be reduced, discharged or otherwise adversely affected by: 15.5.1 any act, omission, matter or thing which would have discharged or affected the liability of Ambac had it been a principal debtor instead of a guarantor or indemnifier; or 15.5.2 anything done or omitted by any person which, but for this provision, might operate or exonerate or discharge Ambac or otherwise reduce or extinguish its liability under the guarantee in this clause 15. 15.6 Ambac waives any right it may have to require the Sellers (or any trustee or agent on their behalf) to proceed against or enforce any other right or claim for payment against any person before claiming from Ambac under this clause 15. 15.7 Ambac shall, on a full indemnity basis, pay to the Sellers on demand the amount of all costs and expenses (including legal and out-of-pocket expenses and any value added tax on them) incurred by the Sellers in connection with the preservation, or exercise and enforcement, of any rights under or in connection with the guarantee in this clause 15 or any attempt so to do. 15.8 Until all amounts which may be or become payable by the Purchaser under or in connection with this Agreement have been irrevocably paid in full, and unless the Sellers otherwise direct in writing, Ambac shall not exercise any security or other rights it may have by reason of performing its obligations under this clause 15, whether such rights arise by way of set-off, counterclaim, subrogation, indemnity or otherwise. 15.9 The guarantee in this clause 15 shall be in addition to and independent of all other security which the Sellers may hold from time to time in respect of the discharge and performance of the Guaranteed Obligations. 15.10 This clause 15 shall automatically terminate in respect of any Guaranteed Obligation on the earlier of: 15.10.1 that Guaranteed Obligation having been satisfied in accordance with the terms of this Agreement; 15.10.2 the Purchaser (and/or its Affiliates) ceasing to control the Company; and 15.10.3 the Sellers ceasing to own Shares, provided that, in the event of clauses 15.10.2 and/or 15.10.3 applying, the provisions of clauses 15.1 to 15.9 shall continue to apply to any Guaranteed Obligation which had become

 
- 51 - due for performance prior to such event occurring until the relevant Guaranteed Obligation has been performed in full. 16. COMPANY RECORDS 16.1 For seven years following Closing, the Purchaser shall, so long as it controls the Company, procure (to the extent within its capacity and authority to do so) that each Group Company shall: 16.1.1 preserve the books, correspondence and records of each Group Company relating to any period up to Closing, in each case to the extent necessary for the purpose of compliance with applicable accounting, legal and Regulatory Requirements; and 16.1.2 allow any of the Sellers and their agents (at the relevant Seller's expense and on prior written notice by the Sellers provided at least three Business Days prior to the desired date of access) reasonable access during the hours of 9:00 am to 5:30 pm on a Business Day to inspect and take copies of the books, correspondence and records preserved in accordance with clause 16.1.1. 16.2 The obligation in clause 16.1.2 is subject to the right of the Company to require the person who is provided with access to give such undertakings (as regards information not relating to the Group) as to confidentiality as the person providing the access may reasonably require. 17. D&O INSURANCE 17.1 For a period of six years from the Closing Date, the Purchaser shall ensure that each Group Company obtains and maintains (at the cost of the Purchaser’s Group) a directors’ and officers’ liability insurance policy that: 17.1.1 covers each director or officer of each Group Company immediately prior to Closing (each such director or officer being a Current Director) in respect of any claims against a Current Director arising from any matter, cause or event occurring on or before Closing; and 17.1.2 is on terms that are no less advantageous to any Current Director than the directors’ and officers’ liability insurance policies maintained by the Group as at the date of this Agreement. 17.2 Upon a written request from a Current Director at any time, the Purchaser shall provide to the resigning director evidence that such insurance policy is in force. The provisions of this Clause 17 are intended to be for the express benefit of, and will be enforceable by, the Current Directors and, in respect any Current Director that is not a party to this Agreement, as a third party beneficiary in accordance with Clause 19.5. 18. SELLERS' REPRESENTATIVES 18.1 Appointment and Role of the Sellers' Representative 18.1.1 The respective Sellers hereby appoint their nominated Sellers' Representative to act in their name and on their behalf for all purposes under this Agreement and the other Transaction Documents, including for the purposes of: (a) delivering payment instructions to the Purchaser in connection with the payment of the Consideration;

 
- 52 - (b) accepting notices on behalf of the Sellers in accordance with clause 19.11 (and the Sellers' Representatives shall pass on such notices to the relevant Seller(s) without delay and in any event within three Business Days of receipt); (c) taking any and all actions that may be necessary or desirable, as determined by the Sellers' Representatives in their sole discretion, in connection with the payment of the costs and expenses incurred in connection with this Agreement and the other Transaction Documents; (d) granting any consent, waiver, confirmation or approval on behalf of the Sellers under or in connection with this Agreement and the other Transaction Documents; (e) generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement and the other Transaction Documents to be performed by the Sellers. 18.1.2 The respective Sellers [***] hereby irrevocably (by way of security for the performance of its obligations under this Agreement) appoint their nominated Sellers' Representative as their attorney on their behalf to do all acts and to execute and deliver such documents or deeds as are required by law or as may, in the reasonable opinion of that Sellers' Representative, be required to give effect to the matters described in this clause 18.1. 18.1.3 Each Sellers' Representatives shall keep its appointing Sellers reasonably informed as to the actions it takes and as to material developments concerning the Transaction (including progress towards satisfaction of the Conditions). 18.1.4 The Purchaser shall be entitled to rely on the exercise of the powers and authorities conferred on the Sellers' Representatives as if the relevant Seller is exercising such powers and authorities. 18.1.5 The relevant Sellers may appoint a replacement Sellers' Representative by giving written notice to the Purchaser and the other Sellers' Representatives. 18.2 Indemnity 18.2.1 Each Seller (by its execution of this Agreement) confirms and agrees that its nominated Sellers' Representative owes no responsibility, duty of care or liability whatsoever in connection with his or her appointment as a Sellers' Representative and each Sellers' Representative shall have no liability whatsoever to the respective Sellers in relation to any action which he or she has taken or omitted to take in the past or may in the future take or omit to take his or her capacity as a Sellers' Representative under this Agreement (save in the event of fraud or wilful misconduct). Each Seller agrees not to bring any action or claim against its nominated Sellers' Representative in connection with his or her appointment as a Sellers' Representative and/or in relation to any action which such Sellers' Representative has taken or omitted to take in the past or may in the future take or omit to take in his or her capacity as a Sellers' Representative under this Agreement. 18.2.2 Each Seller hereby agrees to be bound by each act, agreement, approval, consent and decision of its nominated Sellers' Representative and subject always to clause 18.2.3, each Seller undertakes to indemnify its nominated Sellers' Representative against all liabilities, costs, expenses, damages and losses which it sustains or incurs

 
- 53 - in connection with any action taken in good faith pursuant to its appointment under this clause 18 (including any cost incurred in enforcing this indemnity). 18.2.3 The indemnity in clause 18.2.1 shall not cover any Sellers' Representative if and to the extent a claim under it results from fraud of such Sellers' Representative. 18.2.4 The Sellers acknowledge and agree that the Sellers’ Representatives shall carry out the performance of any obligations on behalf of their respective appointing Sellers in this Agreement and any other Transaction Documents only to the extent reasonably within their respective capacity and authority to do so. 19. OTHER PROVISIONS 19.1 W&I Policy 19.1.1 The Purchaser shall not make any changes to, or otherwise vary the terms of, the W&I Policy if the impact of such change or variation would be to increase the liability of the Sellers under this Agreement and/or the Tax Deed. 19.2 Further Assurances 19.2.1 Each of the parties shall, and shall use reasonable endeavours to procure that any necessary third party shall, from time to time execute such documents and perform such acts and things as any party may reasonably require to give effect to the terms of this Agreement and give any party to this Agreement the full benefit of this Agreement. 19.2.2 After Closing, pending registration of the Purchaser as owner of the Sale Shares, the Sellers shall exercise all voting and other rights in relation to the Sale Shares in accordance with the Purchaser's instructions, except to the extent contrary to Applicable Law. 19.3 Whole Agreement 19.3.1 The Transaction Documents contain the whole agreement between the parties relating to the sale and purchase of the Sale Shares to the exclusion of any terms implied by law which may be excluded by contract and supersede any previous written or oral agreement between the parties in relation to the sale and purchase of the Sale Shares. 19.3.2 The Purchaser agrees and acknowledges that, in entering into the Transaction Documents, it is not relying on any representation, warranty or undertaking not expressly incorporated into them. 19.3.3 Any terms implied by law in any jurisdiction in relation to the Transaction are excluded to the fullest extent permitted by law. 19.3.4 Each of the parties agrees and acknowledges that its only right and remedy in relation to any representation or warranty made or given in or in connection with the Transaction Documents, shall be: (i) (without prejudice to clause 12) damages for breach of the terms of the Transaction Documents; or (ii) a claim pursuant to the W&I Policy and each of the parties waives all other rights and remedies (including rights and remedies to claim damages in tort or under statute or civil codes, or to (wholly or partly) rescind, nullify or terminate (whether by court or arbitral order or otherwise) the Transaction Documents) in relation to any such representation, or warranty.

 
- 54 - 19.3.5 Nothing in this clause 19.3 excludes or limits any liability for fraud or fraudulent misrepresentation. 19.4 Assignment 19.4.1 Except as permitted by this clause 19.4, no party may without the prior written consent of the Purchaser and the Sellers' Representatives assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement. 19.4.2 Subject to clause 19.4.5, a party may without the consent of the other parties, assign to an Affiliate the benefit of the whole or any part of this Agreement provided that, if the assignee ceases to be an Affiliate of that party, it shall before ceasing to be so assign the benefit, so far as assigned to it, back to that party or assign the benefit to another Affiliate of that party, as the case may be. 19.4.3 Subject to clause 19.4.5, this Agreement and all or any of the benefits arising under it may be assigned or charged in whole or in part by the Purchaser to its financial lenders or banks or other creditors or other any member of their groups (including funds) or any security agent or trustee acting on their behalf as security agent, in each case for any financing or refinancing in respect of the Transaction (including any additional facilities and hedging made available in connection with such financing or refinancing) and such benefit may further be assigned to any other financial institution or other creditors by way of security for the borrowings of the Purchaser resulting from any refinancing of the borrowings made under such financing or refinancing or to any person entitled to enforce such security or to any transferee under a valid enforcement of such security. 19.4.4 As soon as practicable after any assignment in accordance with this clause 19.4, the assignor shall give written notice of the assignment to the Purchaser or the Sellers' Representatives as appropriate. 19.4.5 Any assignee pursuant to this clause 19.4 shall not be entitled to receive under this Agreement any greater amount than that to which the assigning party would have been entitled, nor shall any assignment under this clause 19.4 increase the liability of any party. The Guarantee in clause 15 is personal to the Sellers and cannot be assigned. 19.5 Third Party Rights 19.5.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, this Agreement, except if and to the extent set out in this clause 19.5. 19.5.2 A Group Company and its directors, officers, employees or agents may enforce and rely on clauses 11.6, 17 and 19.15.4 to the same extent as if it or they were a party. An assignee pursuant to clause 19.4.2 may enforce and rely on this Agreement as if it were a party. 19.5.3 Any Firm may enforce and rely on clause 14.3 to the same extent as if it were a party to this Agreement. 19.5.4 This Agreement may be terminated and any term may be amended or waived without the consent of the persons named in clause 19.5.2 (except that any such termination,

 
- 55 - amendment or waiver that would be, or would likely be, to the detriment of such persons named in clause 19.5.2 shall require their prior written consent). 19.6 Variation No variation of this Agreement shall be effective unless in writing and signed by the Purchaser, Ambac and the Sellers’ Representatives. 19.7 Method of Payment and Set-Off 19.7.1 Any payments pursuant to this Agreement shall be made in full, without any set-off, counterclaim, restriction or condition and without any deduction or withholding, including Tax, (save as may be required by law or as otherwise agreed), and for these purposes it is acknowledged that any amounts to be withheld or deducted pursuant to clause 3.4 shall not be affected by this clause 19.7.1). 19.7.2 Any cash payments pursuant to this Agreement shall be effected by crediting in cleared funds the following bank accounts: (a) any payments by the Purchaser (or any member of the Purchaser’s Group) to Paraline shall be made to the Paraline Account; (b) any payments by the Purchaser (or any member of the Purchaser’s Group) to Colemont shall be made to the Colemont Account; (c) any payments by the Purchaser (or any member of the Purchaser’s Group) to BCC shall be made to the BCC Account; (d) any payments by the Purchaser (or any member of the Purchaser’s Group) to the Management Sellers shall be made to the Management Seller Accounts; and (e) any payments by the Company to the Purchaser shall be made to a bank account to be notified by the Purchaser to the Company in writing. 19.7.3 Payment of a sum in accordance with this clause 19.7 shall constitute a payment in full of the sum payable and shall be a good discharge to the payer (and those on whose behalf such payment is made) of the payer's obligation to make such payment and the payer (and those on whose behalf such payment is made) shall not be obliged to see to the application of the payment as between those on whose behalf the payment is received. 19.8 Costs 19.8.1 Save as expressly provided otherwise in this Agreement, each party shall bear its own Taxes, costs and expenses incurred in connection with the Transaction, including the negotiation, entry into and completion of the Transaction Documents. 19.8.2 The Sellers acknowledge and agree that any costs and expenses incurred or paid by the Company net of recoverable VAT in connection with the Transaction, including the preparation, negotiation, entry into and completion of the Transaction Documents by the Sellers' Representatives on their behalf shall be either (as the Sellers' Representatives may elect): (a) reimbursed to the Company by the Sellers at or prior to Closing; or

 
- 56 - (b) deducted from the Consideration payable in cash and allocated between each Seller pro rata to the total value of Consideration payable to the Sellers. 19.8.3 No monitoring or transaction fees will be charged by the Purchaser to any member of the Group (including, for this purpose, any new subsidiary of the Company arising on or after Closing) in respect of Closing. 19.9 Registration, Stamp, Transfer Taxes and Duties The Purchaser shall bear the cost of all registration, stamp and transfer taxes and duties or their equivalents in all jurisdictions where such fees, taxes and duties are payable as a result of the purchase of the Sale Shares. The Purchaser shall arrange the payment of such taxes and duties. 19.10 Interest If a party fails to pay any sum due and payable by it under this Agreement on the due date of payment in accordance with the terms of this Agreement, that party shall pay interest on that sum calculated on a daily basis at the rate of 4% per annum above the Bank of England's base rate from time to time (but at 4% per annum for any period when that base rate is below 0%) from (and including) the date for payment to (but excluding) the actual date of payment. 19.11 Notices 19.11.1 Any notice or other communication in connection with this Agreement (each, a Notice) shall be: (a) in writing in English; (b) delivered by hand, email, recorded or special delivery or courier using an internationally recognised courier company. 19.11.2 A Notice to the Sellers shall be sent to the Sellers' Representatives at the following address, or to such other person or address as the Sellers' Representatives may notify to the Purchaser from time to time: (a) Management Representative Address: Beat Capital Partners Limited, 5th Floor, 6 Bevis Marks, London EC3A 7BA, United Kingdom [***] (b) BCC Representative Address: Bain Capital Credit, LP, 200 Clarendon Street, Boston MA 02116, United States [***] (c) Paraline Representative Address: Wand Partners, Inc, 260 Crandon Blvd., Suite 32 #75, Key Biscayne FL 33149, United States

 
- 57 - [***] (d) Colemont Representative Address: Colemont UK Holdings Limited, c/o Amwins, 4725 Piedmont Row Drive, Ste 600, Charlotte NC 28207, United States [***] 19.11.3 A Notice to the Purchaser shall be sent to such party at the following address, or to such other person or address as the Purchaser may notify to the Sellers from time to time: Address: One World Trade Center, 41st Floor New York City, New York, 10017 [***] 19.11.4 Subject to clause 19.11.5, a Notice shall be effective upon receipt and shall be deemed to have been received: (a) at the time recorded by the delivery company, in the case of recorded delivery; (b) at the time of delivery, if delivered by hand or courier; or (c) at the time of sending if sent by e-mail, provided that receipt shall not occur if the sender receives an automated message that the e-mail has not been delivered to the recipient. 19.11.5 A Notice that is received after 5.00pm on any day, or on a Saturday, Sunday or public holiday in the place of receipt, shall be deemed to be received at 09.00am on the next day that is not a Saturday, Sunday or public holiday in the place of receipt. 19.11.6 For the purposes of this clause 19.11, all references to time are to local time in the place of receipt. 19.11.7 Email is not permitted for any Notice which: (i) terminates, gives notice to terminate or purports to terminate this Agreement; or (ii) notifies or purports to notify an actual or potential Claim. 19.12 Invalidity 19.12.1 If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties. 19.12.2 If and to the extent that it is not possible to delete or modify the provision, in whole or in part, under clause 19.12.1, then such provision or part of it shall, if and to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under clause 19.12.1, not be affected.

 
- 58 - 19.13 Counterparts 19.13.1 This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart. 19.13.2 Transmission of an executed counterpart of this Agreement by email (in PDF, JPEG or other agreed format) or by electronic signing (including by DocuSign or any equivalent platform) shall take effect as delivery of an executed counterpart of this Agreement. 19.14 Governing Law and Submission to Jurisdiction 19.14.1 This Agreement and the documents to be entered into pursuant to it, and any non-contractual obligations arising out of or in connection with the Agreement and such documents shall be governed by English law. 19.14.2 Each of the parties irrevocably agrees that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and the documents to be entered into pursuant to it and that accordingly any proceedings arising out of or in connection with this Agreement and the documents to be entered into pursuant to it shall be brought in such courts. Each of the parties irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum. 19.15 Appointment of Process Agent 19.15.1 Each of the Purchaser and Ambac shall appoint and thereafter maintain the appointment of an agent within England to accept service of process in England in any legal action or proceedings arising out of or in connection with this Agreement as soon as reasonably practicable and, in any event, within 28 calendar days of the date of this Agreement, and service upon such agent shall be deemed completed whether or not forwarded to or received by the Purchaser or Ambac respectively. 19.15.2 Each of the Purchaser and Ambac shall inform the Sellers' Representatives in writing of any change of address of the process agent described in clause 19.15.1 within 28 calendar days of such change. 19.15.3 If the process agent described in clause 19.15.1 ceases to be able to act as such or to have an address in England, each of the Purchaser and Ambac irrevocably agrees to appoint a new process agent in England acceptable to the Sellers and to deliver to the parties within 14 calendar days a copy of a written acceptance of appointment by the process agent. 19.15.4 [***] 19.15.5 Each relevant Seller shall inform the Purchaser in writing of any change of address of such process agent within 28 calendar days of such change. 19.15.6 If such process agent described in clause 19.15.4 ceases to be able to act as such or to have an address in England, the relevant Sellers irrevocably agree to appoint a new process agent in England acceptable to the Purchaser and to deliver to the parties within 14 calendar days a copy of a written acceptance of appointment by the process agent.

 
- 59 - 19.15.7 Nothing in this Agreement shall affect the right to serve process in any other manner permitted by law. Executed as a deed and delivered by the parties on the date first mentioned above.

 
- 60 - SCHEDULE 1 THE SELLERS [***]

 
- 61 - SCHEDULE 2 THE COMPANY AND THE SUBSIDIARIES [***]

 
- 62 - SCHEDULE 3 CLOSING OBLIGATIONS 1. THE SELLERS' OBLIGATIONS On Closing, the Sellers shall deliver or make available to the Purchaser (each Seller in respect of itself and/or its Sale Shares as applicable and to the extent not delivered prior to Closing): 1.1 to the extent a Seller has executed this Agreement pursuant to a power of attorney, a copy of such power of attorney; 1.2 evidence (in a form reasonably satisfactory to the Purchaser) that each Institutional Seller (which is a body corporate) is authorised to execute the Transaction Documents to which it is a party; 1.3 subject to the Purchaser complying with its obligations under clause 8.3, transfers of the Sale Shares duly executed by the Sellers in favour of the Purchaser accompanied by the relevant share certificates (as issued to the Sellers following the Conversion); 1.4 a duly executed copy of the BCC Funding Commitment Letter Termination Deed; 1.5 a duly executed copy of the BCC Loan Agreement Termination Deed; 1.6 a duly executed copy of the BCC New Funding Commitment Letter; 1.7 duly executed copies of the Voting Commitment Notices of Terminations; 1.8 duly executed copies of the amendments to the employment agreements of the Management Sellers; 1.9 a duly executed copy of the Existing Shareholders' Agreement Termination Deed; 1.10 a counterpart of the Shareholders' Agreement duly executed by the Continuing Sellers and the Company; 1.11 a counterpart of the Tax Deed duly executed by the Management Sellers; 1.12 an executed power of attorney in favour of the Purchaser or its nominee(s) which would enable the Purchaser/nominee to attend and vote at general meetings of the Company prior to registration of the related transfer in the agreed form; 1.13 a duly executed copy of the amendment to the employment agreement of each Management Shareholder amended in the agreed form; 1.14 a duly executed copy of the board resolutions of the Company authorising the Transaction and the transfer to the Purchaser of the Sale Shares and registration thereof; 1.15 a duly executed copy of the corporate authorisations of each of the Sellers that are not Individual Sellers authorising the Transaction and the transfer to the Purchaser of their respective Sale Shares; 1.16 a duly executed copy of the H Share Repurchase Documents; and

 
- 63 - 1.17 a duly executed copy of the Conversion Resolutions. 2. THE PURCHASER'S OBLIGATIONS On Closing, the Purchaser shall: 2.1 pay the Cash Consideration in accordance with clause 8.3; 2.2 procure, in accordance with clause 8.3, the issue by Ambac to the Continuing Sellers of the Consideration Stock; 2.3 deliver or make available to the Sellers' Representatives: (a) a counterpart of the Shareholders' Agreement duly executed by the Purchaser; (b) a counterpart of the Tax Deed duly executed by the Purchaser; and (c) evidence (in a form reasonably satisfactory to the Sellers’ Representatives) that the Purchaser is authorised to execute the Transaction Documents. 3. AMBAC’S OBLIGATIONS 3.1 On Closing, Ambac shall deliver or make available to the Sellers’ Representatives: 3.1.1 a certificate of the Secretary of Ambac (the “Secretary’s Certificate”), dated as of the Closing Date, (A) certifying the resolutions adopted by the Board of Directors of Ambac or a duly authorised committee thereof approving the transactions contemplated by this Agreement and the issuance of the Consideration Stock, (B) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (C) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in substantially the agreed form; and 3.1.2 duly executed instructions to the Transfer Agent, acknowledged in writing by the Transfer Agent, instructing the Transfer Agent to deliver, on an expedited basis, the number of shares of Consideration Stock set forth opposite the name of such Continuing Seller in part 2 of Schedule 1 and registered in the name of such Continuing Seller (or its nominee, as directed by the Continuing Seller). 3.2 Promptly following Closing, Ambac shall deliver or make available to the Sellers’ Representatives a statement from the Transfer Agent evidencing the transfer and delivery of the Consideration Stock.

 
- 64 - SCHEDULE 4 [Schedule intentionally left blank]

 
- 65 - SCHEDULE 5 PERMITTED LEAKAGE 1. Any payment made or agreed to be made or any cost, liability or expense incurred or agreed to be incurred in respect of any matter undertaken by or on behalf of any Group Company at the written request or with the written agreement of the Purchaser. 2. Any payment made or agreed to be made, or any liability incurred, by or on behalf of any Group Company pursuant to, or provided for in, this Agreement or any other Transaction Document (other than the Disclosure Letter). 3. Anything constituting Leakage in connection with ordinary course payments (i) resulting from any Seller or other member of the Sellers' Group having any interest in any corporate member on the Syndicates or (ii) made to any Seller or other member of the Sellers' Group under the terms of any underwriting capital agreements between Beat Services Limited or Beat Capital Partners Services LLC and that Seller, provided that the relevant arrangement is on arm’s length terms. 4. Any payment made (in the ordinary course of business and in accordance with the terms of the related employment or service contract) to employees, workers, contractors, officers or directors of any Group Company by way of employment remuneration (including increases to such employment remuneration), director fees, contractor fees, pension contributions, annual or quarterly bonuses, commissions, benefits, reimbursement of expenses, and other emoluments in the ordinary course (including any applicable Tax and national insurance in respect thereto), and a bonus payable to a Seller from the amount of the Transaction Bonuses in an amount up to £50,000. 5. Any payment made which is on an arms' length basis and in the ordinary course of business between a Group Company on the one hand and Cadenza Holdings Limited or Cadenza Re Limited on the other by way of Cadenza Re Limited being a reinsurer and ultimate beneficiary of certain underwriting of the Group. 6. The one-time discretionary payment of US$ 290,185 from the Company to Sutton National Insurance Company with respect to supporting the reinsurance costs incurred by it in connection with the Marcato Marine Insurance Services LLC reinsurance programme. 7. Any amounts repayable by the Company to BCC pursuant to the terms of a facility agreement between the Company and BCC dated 21 March 2023. 8. Any amounts actually reimbursed to the Company by the Sellers at or prior to Closing or actually deducted from the Consideration at Closing in each case pursuant to clause 19.8 (being the relevant costs and expenses incurred in connection with the Transaction, including the negotiation, entry into and completion of the Transaction Documents). 9. Any Taxation payable by any Group Company (or which would have been payable by a Group Company but for the use of a relief) as a consequence of any of the matters referred to in paragraphs 1 to 8 above (except if and to the extent that such Taxation has been taken into account under paragraphs 1 to 8).

 
- 66 - SCHEDULE 6 WARRANTIES GIVEN BY THE SELLERS UNDER CLAUSE 11.1 Part 1: Fundamental Warranties 1. SHARE OWNERSHIP AND AUTHORITY 1.1 The Sellers specified in Schedule 1: 1.1.1 are the sole legal and beneficial owners of the number of Shares in the Company set opposite their respective names in Schedule 1; and 1.1.2 have the right to exercise all voting, economic and other rights over such Shares. 1.2 The execution and delivery by the Sellers of this Agreement and the Transaction Documents (that any such Seller is party to), and compliance with their respective terms, shall not breach or constitute a default under the Company's articles of association, or any other agreement or instrument to which any Seller is a party or by which any Seller is bound, and shall not constitute a breach under any Applicable Law or other restriction applicable to any Seller. 1.3 The Sellers have, where relevant, each taken or will have taken by Closing all corporate action required to authorise them to enter into and to perform this Agreement and the other Transaction Documents (to which any such Seller is party) to be executed by them. 1.4 The Sellers each have the legal right and full power and authority to enter into and perform this Agreement and the other Transaction Documents (that any such Seller is party to) to be executed by them and such documents will, when executed, constitute valid and binding obligations on the Sellers, in accordance with their respective terms. 1.5 Subject to the satisfaction of the Conditions in accordance with this Agreement, in respect of each Seller, no consent, approval, authorisation or order of any court or governmental, regulatory or other regulatory authority which has not been obtained or made at the date of this Agreement is required by such Seller where failure to obtain such consent, approval, authorisation or order would materially and adversely affect such Seller's ability to enter into and perform such Seller's obligations under this Agreement, any other Transaction Documents to which such Seller is party and the Transaction. 1.6 No Seller that is a natural person has: 1.6.1 had a bankruptcy petition presented against them or been declared bankrupt; 1.6.2 been served with a statutory demand, or is unable to pay their debts within the meaning of the Insolvency Act 1986; 1.6.3 entered into, or has proposed to enter into, any composition or arrangement with, or for, their creditors (including any form of voluntary arrangement); or 1.6.4 been subject of any other event analogous to the foregoing in any jurisdiction. 1.7 In respect of each Seller that is a legal person: 1.7.1 no order has been made and no resolution has been passed for its winding up or for a liquidator to be appointed in respect of it and no petition has been presented and no meeting has been convened for the purpose of its winding up (and in each case

 
- 67 - no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); 1.7.2 no administration order has been made and no petition for such an order has been presented in respect of it (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); 1.7.3 no receiver (which expression shall include an administrative receiver) or analogous officer or official in any jurisdiction has been appointed in respect of it or in respect of all or any material part of its assets (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto); 1.7.4 it is not, nor is deemed to be, insolvent or unable to pay its debts within the meaning of laws relating to insolvency applicable to it; 1.7.5 no moratorium has been sought or been granted in respect of it within the meaning of laws relating to insolvency applicable to it; and 1.7.6 no voluntary arrangement has been proposed with its creditors in respect of it within the meaning of laws relating to insolvency applicable to it. 2. SHARE CAPITAL 2.1 The information contained in part 1 of Schedule 1 is as at the date of this Agreement, true and complete and the shares listed therein constitute the whole of the issued and allotted share capital of the Company. 2.2 All of the Shares and the other share capital in the Company as set out in part 1 of Schedule 1 are fully paid or credited as fully paid, have been validly issued and allotted and comprise the entire issued and allotted share capital of the Company. 2.3 No person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer or repayment of any share capital giving rise to a right over, or an interest in, the capital of the Company under any options, warrants agreements or other arrangements (including conversion rights and rights of pre-emption) or any other securities but excluding, for the avoidance of doubt, any drag-along or tag-along provisions and any rights of first offer, rights of first refusal or other pre-emption arrangements under the terms of any shareholders' agreement or constitutional document relating to the Company. Part 2: Business Warranties 1. INFORMATION 1.1 The information contained in part 1 of Schedule 1 and Schedule 2 is true, complete and accurate in all material respects. 1.2 Save as set out in Schedule 2, (i) each of the Subsidiaries is wholly owned (directly or indirectly) by the Company and (ii) there is no Encumbrance on, over or affecting any shares (including the Shares), debentures or other securities of any Group Company and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any unissued shares or loan notes of any Group Company. 1.3 The shares listed in Schedule 2 in respect of each Subsidiary constitute the entire issued and allotted share capital of the relevant Subsidiary. All of the shares in the capital of the Subsidiaries are validly allotted and issued and fully paid or credited as fully paid.

 
- 68 - 1.4 No person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer or repayment of any share capital giving rise to a right over, or an interest in, the capital of any Subsidiary under any options, warrants agreements or other arrangements (including conversion rights and rights of pre-emption) or any other securities but excluding, for the avoidance of doubt, any drag-along or tag-along provisions and any rights of first offer, rights of first refusal or other pre-emption arrangements under the terms of any shareholders' agreement or constitutional document relating to relevant Subsidiary. 1.5 Each Group Company is duly incorporated and validly existing under the laws of the jurisdiction in which it is incorporated. 1.6 No Group Company controls or takes part in, or has agreed to control or take part in, the management of any company or business organisation other than those listed in paragraph 2 of Schedule 2 nor does any Group Company own any debt or equity securities issued by, nor does it have any beneficial or other interest, in any other entity. 1.7 All dividends and distributions declared, made or paid by any Group Company at any time were, when declared, made or paid, in accordance with the requirements of any Applicable Law and the constitutional documents of the relevant Group Company and all dividends declared or due in respect of the Shares have been paid in full. 2. ACCOUNTS 2.1 The Accounts: 2.1.1 have been prepared in accordance with Applicable Law and with the accounting principles, standards and practices generally accepted in the United Kingdom as at the date of this Agreement; 2.1.2 give a true and fair view of the state of affairs, financial position and of the assets and liabilities of the Group Companies as at the Accounts Date and of the profits and losses of the Group Companies for the financial year ended on the Accounts Date; 2.1.3 have been audited in accordance with Applicable Law and the auditor’s report on such Accounts is unqualified; 2.1.4 have been prepared using the accounting policies and practices and the assumptions and estimation techniques adopted and applied in preparing the accounts of the Group and the Company for the three financial years preceding the financial year to which the Accounts relate; 2.1.5 disclose and make full provision or reserve for (or note in accordance with the relevant accounting principles, standards and practices generally accepted in the United Kingdom as at the date of this Agreement) all liabilities (whether actual, contingent, unquantified or disputed), capital, pension or other financial commitments, Tax and bad and doubtful debts; and 2.1.6 do not include (and the profits of each Group Company for the period have not been affected to a material extent by) any material extraordinary or non-recurring (other than in the ordinary course) items (and for the purposes of this warranty, materiality shall refer to items with a value of at least £500,000). 2.2 Complete and accurate copies of the Accounts and Management Accounts are included in the Data Room at folder 3.1.

 
- 69 - 2.3 The Management Accounts fairly present and do not materially misstate (having regard to the purpose for which the Management Accounts were prepared) the profit and loss, assets and liabilities of the Group Companies as at the date to which they have been prepared. 2.4 The Management Accounts have been prepared on a basis consistent with the Accounts. 2.5 All accounts, books, ledgers, financial and other material records of whatsoever kind which that Group Company is required to maintain by Applicable Law of every Group Company: 2.5.1 are in the possession or under the control of the Group; and 2.5.2 have in the three years preceding the date of this Agreement been maintained in all material respects in accordance with Applicable Law. 2.6 Document 3.1.2.17.3 in the Data Room shows the true and accurate position of the cash balances position of each Group Company as at 31 March 2024 and no cash movements made following that date have been carried out otherwise than in the ordinary course of business. 3. CHANGES SINCE THE LOCKED BOX ACCOUNTS DATE 3.1 Since the Locked Box Accounts Date: 3.1.1 no Group Company has resolved to change its name or to alter its articles of association (or equivalent constitutional documents); 3.1.2 no Group Company has issued or agreed to issue any shares or any securities or granted or agreed to grant any right which confers on the holder any right to acquire any shares or other securities; 3.1.3 no Group Company has declared, paid or made any dividend or other distribution; 3.1.4 no Group Company has repaid, redenominated, redeemed or purchased any of its share capital or loan capital or agreed to do so; 3.1.5 no Group Company has repaid any loan or indebtedness in advance of its stated maturity (other than in the ordinary course); 3.1.6 no Group Company has reduced its share capital; 3.1.7 no Group Company has resolved to be voluntarily wound up; 3.1.8 no Group Company has made, or agreed to make, any material change (including any change by the incorporation, acquisition or disposal of a subsidiary (other than any subsidiary listed at Schedule 2 which has been incorporated since the Locked Box Accounts Date), or a business or material assets) in the nature or extent of its business; 3.1.9 no Group Company has created, or agreed to create, any Encumbrance over its business, undertaking or over any of its material assets; 3.1.10 no Group Company has changed or removed its auditors; 3.1.11 no Group Company has made any change in its accounting reference period;

 
- 70 - 3.1.12 no Group Company has made any change in its accounting policies or practices (other than as required by Applicable Laws or applicable accounting policies or practices); 3.1.13 no Group Company has, other than in relation to employment contracts, intragroup agreements or agreements with Asta Managing Agency Limited or for advisory fees in connection with the Transaction, entered into, amended or terminated any single contract, liability or commitment which involved or may involve expenditure of £250,000 in one single item (or annually) or any Material Contract; 3.1.14 no Group Company has disposed of, or agreed to dispose of, other than in the ordinary course of business, any one or more assets in a single transaction or a series of connected transactions, where the value of such assets exceeds £100,000; 3.1.15 no Group Company has acquired or agreed to acquire any fixed assets of a book value in excess of £100,000. 3.1.16 each Group Company has carried on its business in the ordinary course so as to maintain it as a going concern and without any interruption or alteration in the nature, scope or manner of its business; 3.1.17 there has been no material adverse change in the financial or trading position or prospects of any Group Company and, so far as the Management Sellers are aware, there are no facts which are likely to give rise to any such change; 3.1.18 so far as the Management Sellers are aware, no event has occurred which would entitle a third party to terminate any Material Contract or accelerate any payment under a Material Contract; 4. INSOLVENCY 4.1 No order has been made and no resolution has been passed for the winding-up of any Group Company or for a liquidator to be appointed in respect of any Group Company and no petition has been presented and no meeting has been convened for the purpose of winding-up any Group Company (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto). 4.2 No administration order has been made and no petition for such an order has been presented in respect of any Group Company (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto). 4.3 No receiver (which expression shall include an administrative receiver) or analogous officer or official in any jurisdiction has been appointed in respect of any Group Company or in respect of all or any material part of its assets (and in each case no corporate action, legal proceedings or other procedure or step has been taken in relation thereto). 4.4 No Group Company is or is deemed to be insolvent or unable to pay its debts within the meaning of laws relating to insolvency applicable to any Group Company nor are there any unsatisfied written demands that have been served on any Group Company pursuant to section 123(1)(a) of the Insolvency Act 1986 and no Group Company has stopped payment of its debts as they fall due, suspended making payments of any of its debts, commenced negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness or is unable to or admits inability to pay its debts within the meaning of section 123 of the Insolvency Act 1986.

 
- 71 - 4.5 No moratorium has been sought or been granted under section 1A of the Insolvency Act 1986 in respect of any Group Company. 4.6 No voluntary arrangement has been proposed by a Group Company under section 1 of the Insolvency Act 1986 in respect of any Group Company. 4.7 No action is being taken by the registrar of companies to strike off any Group Company under section 1000 of the Companies Act 2006. 4.8 So far as the Management Sellers are aware, there are no circumstances which would entitle any person to present a petition for the winding up of any Group Company, to appoint an administrator in respect of any Group Company or to appoint an administrative or other receiver over the whole or any part of any Group Company's assets or undertaking. 4.9 No step or procedure analogous to those set out in this paragraph 4 has been taken or commenced in any jurisdiction outside England and Wales in relation to any Group Company or any of its assets or undertaking. 4.10 So far as the Management Sellers are aware, no person who now is, or who at any time within the last three years was, a director or officer of any Group Company is, or at any time was, subject to any disqualification order or undertaking under the Company Directors Disqualification Act 1986 or equivalent legislation outside England and Wales. 5. LAW AND REGULATION 5.1 Each Group Company has at all times conducted its business in all material respects in accordance with: 5.1.1 all Applicable Law in each jurisdiction where it has an establishment or conducts any business; and 5.1.2 all Regulatory Requirements to which such Group Company is subject. 5.2 Each Group Company has obtained all Authorisations required to carry on its business and such Authorisations are in full force and effect and have in the two years preceding the date of this Agreement been complied with in all material respects and none of the Group Companies are in default under the Authorisation and none of the Authorisations will be terminated, suspended, limited, revoked or invalidated as a result of the transactions contemplated hereby. There are no other Authorisations that are material to the Group Companies or their respective businesses which any Group Company is required to obtain in order to carry on its business as carried on at the date of this Agreement. 5.3 In the three years prior to the date of this Agreement, no Group Company has received written notice that it is in material breach of any Authorisation held by it and, so far as the Management Sellers are aware, there is no ongoing investigation, enquiry or proceeding outstanding which, as at the date of this Agreement, will result in the suspension, cancellation or revocation of any such Authorisation, nor has any Group Company had any fines or penalties imposed on it (or its respective directors) by any Relevant Authority in any jurisdiction in which any Group Company conducts its business. 5.4 So far as the Management Sellers are aware, (a) there are no circumstances which indicate that any licence, permit, consent or authority referred to in paragraph 5.2 will, or is likely to be, suspended, cancelled or revoked in whole or in part, whether in connection with the sale of the Sale Shares to the Purchaser or otherwise, and (b) there are no factors that might in

 
- 72 - any way prejudice the continuance or renewal of any such licence, permit, consent or authority. 5.5 No Group Company has any outstanding application with any insurance Relevant Authority. 5.6 No Group Company has received written notice from any Relevant Authority that it is under investigation with respect to any violation of any Applicable Laws. So far as the Management Sellers are aware, there are no outstanding orders or unsatisfied judgments, penalties or awards against or affecting any of the Group Companies or any of their assets or any employee of the Group Companies (in their capacity as such) in each case which are material to the Group Companies or their respective businesses. In the three years prior to the date of this Agreement, none of the Group Companies have received, and, so far as the Management Sellers are aware, there has been no issuance of, any written notice from any Relevant Authority of any material violation or alleged material violation by the Group Companies or any of the employees, directors or officers (in their capacity as such) of any Applicable Laws. 5.7 Except as would not be, individually or in the aggregate, reasonably likely to be materially detrimental to the Group, no written customer complaints with respect to any Group Company have been received by the Group in the two years prior to the date of this Agreement. 6. LLOYD'S 6.1 Beat CCM Nine Limited has not conducted any business other than that of a corporate member at Lloyd's nor incurred any liabilities other than (i) as a corporate member of Lloyd's or (ii) operational expenses incurred in the ordinary and usual course of conducting business at Lloyd's. 6.2 Neither of Beat CCM One Limited and Beat CCM Eleven Limited has ever traded and is not and has not been authorised or approved to act as a corporate member at Lloyd’s. 6.3 Beat CCM Nine Limited has not participated on any Lloyd's syndicate other than on Syndicate 4242 and Syndicate 6123. 6.4 Since 1 January 2017, Beat CCM Nine Limited (x) has not agreed to sell or transfer any of its rights to participate as a member of a Lloyd’s syndicate or offered to acquire rights to participate in any Lloyd’s syndicate, and (y) has complied with the Lloyd’s Regulations and any and all undertakings given to Lloyd’s in respect of its participation. 6.5 There are no corporate members of Lloyd’s in the Group other than Beat CCM Nine Limited. 6.6 No person is, or has a right to participate as, a member of the Syndicates in any year of account, other than as set out in document 5.1.3.6.7 of the Data Room. 6.7 Beat CCM Nine Limited has no outstanding obligations as to Funds at Lloyd’s. 6.8 Asta Managing Agency Ltd is the Lloyd’s managing agent for each of the Syndicates. No other person is, or has the right to be, the managing agent of the Syndicates. 6.9 No Group Company is approved and authorised by the UK Prudential Regulation Authority and UK Financial Conduct Authority as a Lloyd’s managing agent and does not hold any permissions from the Council of Lloyd’s to act as a managing agent at Lloyd’s. 6.10 The only Years of Account (as defined in Lloyd’s Regulations) of the Syndicates that remain open Years of Account are the 2022 to 2024 Years of Account.

 
- 73 - 6.11 Copies of all contracts between a Group Company and parties providing capacity to the Syndicates are disclosed in the Data Room at folder 5. 6.12 So far as the Management Sellers are aware, no capacity provider has indicated an intention to cease providing capacity to the Syndicates. 6.13 All current capacity providers to the Syndicates are not permitted to trade capacity on the Syndicates by virtue of the Deed of Variations to the Standard Lloyd’s Managing Agent Agreement as included in the data room and a Group Company has contractual rights in respect of the allocation of capacity in accordance with the TPSMA. Other than members' agent pooling arrangements (MAPAs) being able to offer dropped capital to other participants in the same MAPA first, and Asta’s rights of allocation as managing agent to the Syndicates but subject to the terms of the TPSMA, the Sellers are not aware of any other person having the right to allocate capacity on the Syndicates. 6.14 Each person carrying on a Controlled Function on behalf of any Group Company has, to the extent required under Applicable Law, been approved by the FCA to do so. 7. TRUST ACCOUNT 7.1 The Group Companies have at all times in the three years prior to the date of this Agreement been and are currently in compliance in all material respects with any material contract to which any of the Group Companies are a party relating to trust, fiduciary or similar accounts held by Group Companies and the separation and accounting of premium trust funds by Group Companies and so far as the Management Sellers are aware an amount equal to the funds or other property received by any of the Group Companies from or on behalf of any insurance carrier, retail broker, insurance agent or insured has been applied or used in all material respects in accordance with the terms on which such funds or property were given to any of the Group Companies. None of the Group Companies have received written notice from any counterparty in the three years prior to the date of this Agreement that they have not invested or earned interest on such funds in accordance with the instructions of, or with the prior written consent of, the beneficiary thereof. 8. ANTI-CORRUPTION, ANTI-MONEY LAUNDERING AND SANCTIONS 8.1 None of any Group Company, its directors, officers or its employees or any other person acting on behalf of any Group Company has violated any applicable Anti-Corruption Law, Anti-Money Laundering Law or Sanctions Law since its incorporation. 8.2 Each Group Company has at all relevant times had in place adequate procedures designed to prevent persons associated with it within the meaning of section 8 of the Bribery Act 2010 from undertaking any conduct that would constitute an offence by any Group Company under section 7 of that Act (or would have done so if that Act had been in force at the relevant time), and each Group Company and its associated persons have at all times complied with such procedures and the Management Sellers are not aware of any breach of such procedures. 8.3 No Group Company, nor any of its directors, officers or its employees or any other person acting on behalf of any Group Company since its incorporation: 8.3.1 is, or has been a Sanctioned Person; 8.3.2 directly, or knowingly indirectly, transacted with any person who at such time was a Sanctioned Person; or 8.3.3 violated any applicable Sanctions Laws.

 
- 74 - 8.4 Neither the Group Companies, nor any of their officers, employees or agents, nor, in the case of the Bribery Act 2010, its associated persons, is or has been the subject of any actual or threatened investigation, inquiry or enforcement proceedings, or been charged, in connection with any offence or alleged offence under the Bribery Act 2010, any other applicable anti- bribery or Anti-Corruption Law or any Anti-Money Laundering Law or Sanctions Law and there are no circumstances likely to give rise to any such investigation, inquiry, enforcement proceedings or charges. 9. CONSTITUTION AND RECORDS 9.1 A copy of the constitutional documents of each Group Company has been Fairly Disclosed and such copy is complete, true, accurate and up to date in all respects. Each Group Company has at all times carried on its business and affairs in all respects in accordance with its constitutional documents and none of its activities is ultra vires or unauthorised. 9.2 The statutory registers of each Group Company are complete, accurate and up to date in all material respects and are in the possession of the relevant Group Company and, so far as the Management Sellers are aware, contain a complete, true and accurate record of all matters which should be dealt with in those books. 9.3 The only directors of each Group Company are those listed in Schedule 2 and, so far as the Management Sellers are aware, no person is a shadow director or an alternate or de facto director of any Group Company. 9.4 So far as the Management Sellers are aware, all returns, particulars, resolutions and other documents required under the Companies Act 2006 and equivalent legislation in all other relevant jurisdictions to be delivered on behalf of each Group Company to the registrar of companies or equivalent registrar in all other relevant jurisdictions have been duly delivered. 9.5 No written notice or allegation that any of the statutory books of any Group Company is materially incorrect has been received by any Group Company and, as far as the Management Sellers are aware, there are no circumstances which might reasonably be expected to lead to any such written notice or allegation being received by any Group Company. 10. LITIGATION 10.1 Other than the collection of debts in the ordinary course of business, none of the Group Companies is involved in a civil, criminal, mediation, arbitration, administrative or other proceeding. 10.2 So far as the Management Sellers are aware, no civil, criminal, mediation, arbitration, administrative or other investigation or enquiry is pending or threatened in writing by or against any member of the Group (other than in relation to the collection of debts arising in the ordinary course of business). 10.3 There is no unsatisfied judgment, decree, order or award of any court, tribunal, arbitrator or governmental agency outstanding against any Group Company. 10.4 There are no circumstances reasonably likely to lead to any such claim or legal action, proceeding or arbitration, prosecution, investigation or inquiry. 10.5 In the three years before the date of this Agreement, no Group Company has been involved in any legal proceedings with any person who is or was a significant customer, client or supplier (including capacity providers) of the Group.

 
- 75 - 10.6 No Group Company is subject to any order or judgment given by any court, arbitrator, tribunal, regulator or governmental agency which is still in force and has not given any undertaking to any court, arbitrator, tribunal, regulator or governmental agency or to any third party arising out of any legal proceedings. 11. EMPLOYEES AND PENSIONS 11.1 An accurate anonymised schedule of all persons who are officers or Employees of a Group Company as at 17:00 UK time, 30 May 2024, including details of each individual’s (i) identification number; (ii) job title; (iii) start date and length of service; (iv) contracted hours of work; (v) current salary and most recent salary rise; (vi) notice periods (by both employer and Employee or officer), (vii) for U.S. Employees, exempt or non-exempt status under the Fair Labor Standards Act and (viii) type of contract (whether part or full-time) is included in the Restricted Data Room at folder 6. 11.2 All UK Employees are employed or engaged by Beat Services Limited. All US Employees are employed or engaged by Beat Capital Partners Services LLC. All Bermuda Employees are employed or engaged by Alcor Underwriting Bermuda Limited. There are no Employees who are on secondment to any third party. Copies of all secondment agreements between any Group Company and any other Group Company have been provided in the Data Room. 11.3 Folder 4 of the Data Room and folders 1, 3, 4 and 6 of the Restricted Data Room collectively contain details of the general terms of employment for Employees and the specific terms of employment of each Relevant Employee. All Employees (other than the Relevant Employees) are employed on the standard form template terms of employment or engagement disclosed in the Data Room without material deviations. 11.4 The Data Room contains copies of all share incentive and share option plans and agreements in place in respect of any officers or Employees (or former officers or employees), together with copies of any award agreements and other related documents and a summary of all awards made showing details of grant dates, exercise prices (if applicable) and vesting dates. There are no other share incentive or share option plans or agreements or employee share trusts. 11.5 The Data Room contains copies of all employee benefit plans (including but not limited to profit sharing, commission, bonus or other (long-term or short-term) incentive schemes, long- term disability, life insurance, death-in-service, private medical, change-in-control, post- retirement medical, directors’ and officers’ insurance, car, redundancy and any other benefit plans, schemes or arrangements) for the benefit of all or any present officers or Employees (or their dependants) currently in place in relation to any Group Company (the arrangements in this paragraph and paragraph 11.4 together being the “Benefit Plans”). No former officers or employees (or their dependants), since the termination of office or employment, have any entitlement to benefits under the Benefit Plans. 11.6 Each Benefit Plan has (or, in relation to any Benefit Plan provided by an external third-party provider, each such Benefit Plan has, so far as the Management Sellers are aware) at all times been operated in all material respects in accordance with the governing plan documents of such Benefit Plan and in accordance with Applicable Law and, so far as the Management Sellers are aware, all documents which are required to filed with any regulatory authority have been so filed. All Tax and regulatory clearances and approvals necessary or desirable to obtain in relation to each Benefit Plan have been obtained and have not been withdrawn and, so far as the Management Sellers are aware, no event has occurred which might prejudice any such clearances or approvals. No Group Company is proposing to introduce any new benefit or incentive scheme for the benefit of any Employee or any dependant of such person.

 
- 76 - 11.7 The sale of the Shares (whether alone or in combination with any other event, including but not limited to termination of employment) shall not result in (x) any Employee being entitled to terminate or give notice to terminate their employment or other engagement or any award, benefit, transaction, retention or other bonus or similar payment or fee being granted or paid or becoming vested to any Employee (in each case other than any such matters that are expressly contemplated by any Transaction Document) or (y) in respect of US Employees or any Employee who is a taxpayer of the United States of America, result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” under §280G of the Internal Revenue Code of 1986 (the “IRC”). No US Employee located in, or any Employee who is a taxpayer of, the United States of America, is entitled to receive any additional payment (including any tax gross-up or other payment) from any Group Company as a result of the imposition of the excise Taxes required by IRC §4999 or any Taxes required by IRC §409A. 11.8 As at 17:00 UK time, 29 May 2024, (i) no Relevant Employee has given or received notice to terminate his or her employment, nor are there any current (or threatened in writing) disciplinary or grievance proceedings, claims, disputes or appeals in respect of any Employee (in their capacity as an Employee), and (ii) no offer of a contract has been made by any Group Company to, but not yet accepted by, any individual who would thereby become an Employee. 11.9 So far as the Management Sellers are aware, each Group Company has, in relation to all current and former Employees, complied in all material respects with all applicable obligations under Applicable Law and applicable terms and conditions of employment or engagement. 11.10 Since the Locked Box Accounts Date (or, if later, the date on which the relevant person was engaged): 11.10.1 no change has been made or proposed in the rate of remuneration or any benefits of any Relevant Employee; 11.10.2 no change has been made or proposed in any other terms of employment or engagement of any Relevant Employee; and 11.10.3 there has been no material increase (which for these purposes in respect of any individual Employee shall mean an amount greater than £50,000, such amount excluding any discretionary bonus paid to such Employee from time to time) in the remuneration or benefits payable to any Employee, nor any material change in the terms of employment of or benefits provided to Employees generally. 11.11 No Group Company owes anything to its Employees other than remuneration accrued due for the current pay period, accrued holiday pay for the current holiday year, accrued bonuses for the current bonus period and expenses claims. 11.12 Details of all loans outstanding from Employees to any Group Company as at 17:00 UK time on 29 May 2024 have been provided in folder 3.1.4.4 of the Data Room. 11.13 No Group Company has, in the five-year period prior to the date of this Agreement, been a party to a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 affecting any of the Employees. 11.14 Within the period of two years preceding the date of this Agreement, no Group Company has given written notice of any redundancy to the Secretary of State or any other appropriate body or started consultation with any independent trade union or workers’ representatives in relation to any Employees.

 
- 77 - 11.15 No Employee would, in the event of being dismissed by reason of redundancy or upon any other termination without cause, be entitled to or have an expectation of receiving a severance payment in excess of the statutory minimum provided under Applicable Law. There has been no custom, practice, policy or arrangement (whether or not legally binding) by any Group Company of paying redundancy or severance payments in excess of the statutory minimum provided under Applicable Law. 11.16 Details of all redundancies implemented by the Group in the last 12 months have been Fairly Disclosed in the Data Room and the Restricted Data Room. There are no ongoing redundancies and there are no proposals to implement any redundancies within the Group in the next 12 months. 11.17 No Group Company is involved in any employment or industrial dispute and, so far as the Management Sellers are aware, there are no pending or potential claims against any Group Company by any person who is now or has been an officer or Employee of any Group Company. 11.18 No Group Company recognises any trade union, works council, staff association or other body representing its Employees (or a substantial body of them) nor is it party to any agreement or arrangement with any such body nor has it done any act which might be construed as recognition or received a request for recognition of any such body and, so far as the Management Sellers are aware, no such request is pending. 11.19 Details of any individuals who are not employees (including consultants, workers, independent contractors, freelancers, outworkers, agency workers or persons treated as self- employed, contracted labour or agents) providing material services to a Group Company have been set out in, collectively, folders 1 and 3 of the Restricted Data Room and folder 4.3 of the Data Room, and all such individuals have at all times of service with the Group Companies been classified in compliance with Applicable Law. 11.20 Neither the acquisition of the Shares by the Purchaser nor compliance with the terms of this Agreement will relieve any person of any obligation pursuant to an employment agreement with any Group Company, or enable any person to terminate or modify any such employment agreement. 11.21 Copies of standard terms of employment, terms of employment for Relevant Employees and staff handbooks and applicable employment policies and procedures have been set out in, collectively, folder 4.3 of the Data Room and folder 4 of the Restricted Data Room. 11.22 In respect of and in relation to each Group Company, within the three years preceding the date of this Agreement: 11.22.1 so far as the Management Sellers are aware, no person has had cause to report any material wrongdoings or irregularities to the Pensions Regulator (or equivalent regulator in other jurisdictions) and there are no facts which would require a report to be made; and 11.22.2 no civil or criminal penalties, fines or other sanctions have been imposed and there has been no written correspondence with the Pensions Regulator (or equivalent regulator in other jurisdictions) on any issues which may give rise to penalties, fines or other sanctions being imposed. 11.23 So far as the Management Sellers are aware, there is no Employee in any jurisdiction who is subject to immigration control:

 
- 78 - 11.23.1 who has not been granted the relevant immigration permission or clearance to work in the relevant jurisdiction; or 11.23.2 whose immigration permission or clearance is (or has at any time during their employment or engagement been) invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or is subject to a condition preventing them from undertaking their employment or engagement. 11.24 The Pension Scheme is a registered pension scheme under the Finance Act 2004 and, so far as the Management Sellers are aware, there is no reason why registration could be withdrawn. 11.25 Folder 4.3 of the Data Room contains all material documents governing the Pension Scheme. 11.26 Save in relation to the Pension Scheme, no Group Company participates in any arrangements for the provision of retirement, pension or lump sum benefits for its Employees or former employees or directors and any dependent of these on retirement, incapacity, ill- health or on death. Except for a Contract with Insperity PEO Services, L.P., no Group Company sponsors, contributes to or maintains any arrangements for the provision of retirement, welfare or other employee benefits to any U.S. Employees. 11.27 The Restricted Data Room contains details of the current employer and employee contribution rates for all Employees to the Pension Scheme. 11.28 Within the three years prior to the date of this Agreement, all contributions, insurance premiums, Tax and expenses due from and in respect of members of the Pension Scheme have been calculated correctly and paid within the prescribed period and by the relevant due dates. 11.29 Each Group Company has at all times complied with its automatic enrolment obligations under the Pensions Act 2008. Each Group Company complies and has at all times complied with all legal, regulatory and contractual obligations in respect of the Pension Scheme, including in connection with the calculation of, and timely payment of, all contributions, insurance premiums, taxes and expenses. 11.30 There are no claims, complaints, investigations or disputes that have been made against a Group Company in relation to the provision of (or failure to provide) pension, lump sum, death, sickness, accident or disability benefits by each Group Company and, so far as the Management Sellers are aware, there are no facts or circumstances likely to give rise to such written claims or written complaints, investigations or disputes. 11.31 All benefits payable under the Pension Scheme are money purchase benefits as defined in section 181 of the Pension Schemes Act 1993. No Group Company participates nor ever has participated in any pension plan, scheme or arrangements (whether in the UK or elsewhere) under which retirement or pension benefits are or were calculated on a defined benefit basis. 11.32 Each Group Company complies (and the trustees of the Pension Scheme comply) and has at all times complied with all legal, regulatory and contractual obligations in respect of the Pension Scheme. 11.33 There are no pending or, so far as the Management Sellers are aware, threatened claims, disputes, allegations, appeals or investigations against any Group Company with respect to allegations of sexual harassment or sexual misconduct and there have been no reported internal or external complaints accusing any Relevant Employee of sexual harassment or

 
- 79 - sexual misconduct, nor any settlement of, or payment arising out of or related to, sexual harassment or sexual misconduct by any Relevant Employee. 12. INTELLECTUAL PROPERTY RIGHTS, INFORMATION TECHNOLOGY AND DATA PROTECTION 12.1 The Data Room at folder 2.3 contains complete and accurate details of all Owned IPR that is registered or the subject of applications for registration, and a Group Company is the sole and exclusive legal and beneficial owner of all right, title and interest in and to all such Owned IPR free from all Encumbrances. So far as the Management Sellers are aware, each item of Owned IPR that is registered or the subject of applications for registration is subsisting, valid and enforceable. 12.2 So far as the Management Sellers are aware, the Group has a licence (which is written, valid, subsisting and enforceable) to use all Licensed IPR that are used by or are necessary for the Group to carry on its business in the manner in which it is presently conducted, and all such Owned IPR and Licensed IPR shall be owned or available for use by the Group immediately after the date of this Agreement on the same terms and conditions as those under which the Group owned or used such Intellectual Property Rights immediately before the date of this Agreement. 12.3 The Owned IPR and the Licensed IPR (when used within the scope of the applicable agreement) constitutes all of the Intellectual Property Rights necessary and sufficient for the conduct of the business of the Group. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in (i) the loss or impairment of the Group’s right to own or use any material Owned IPR or Licensed IPR or (ii) the payment of any additional consideration for the Group’s right to own or use any such Intellectual Property. 12.4 So far as the Management Sellers are aware, no Group Company is infringing, misappropriating, otherwise violating or making unauthorised use of, or has infringed, misappropriated, otherwise violated or made unauthorised use of, the Intellectual Property Rights of a third party and no third party is infringing, misappropriating, otherwise violating or making unauthorised use of, or has infringed, misappropriated, otherwise violated or made unauthorised use of, the Owned IPR. 12.5 The legal and beneficial ownership of all Intellectual Property Rights created by past or present employees or independent contractors of any Group Company, in the course of their employment or engagement, is vested in the relevant Group Company via a valid and enforceable written agreement, in each case, pursuant to which each employee or independent contractor has effectively and validly assigned to a Group Company all of such person’s right, title and interest in and to all such Intellectual Property. 12.6 So far as the Management Sellers are aware, no Group Company has received written notice of any infringement, misappropriation, other violation or unauthorised use of Intellectual Property Rights of a third party or any other claim, dispute, attack, opposition, interference or contested ownership or validity of any Owned IPR. None of the Owned IPR is the basis for any attack, challenge, written claim or proceedings for infringement, entitlement, opposition, invalidation or revocation brought by a Group Company against a third party and, so far as the Management Sellers are aware, there are no facts or circumstances that would form the basis for any of the foregoing. 12.7 The Group Companies do not use or distribute, and have not used or distributed, any Open Source Software in any manner that would require any source code of the Software that is owned or purported to be owned by the Group Companies to be disclosed, licensed for free,

 
- 80 - publicly distributed, attributed to any person or dedicated to the public. The Group Companies are in compliance with all terms and conditions of all relevant licenses (including all requirements relating to notices and making source code available to third parties) for all Open Source Software used in the business. None of the source code or related source materials for any Software that is owned or purported to be owned by the Group Companies has been licensed, provided or made available to, or used or accessed by, any person other than employees and independent contractors of a Group Company who have executed written confidentiality agreements with respect to such source code and source materials. No Group Company is a party to any source code escrow agreement or any other agreement (or a party to any agreement requiring a Group Company to enter into a source code agreement or similar agreement) requiring the deposit of any source code or related materials for any Software owned or purported to be owned by a Group Company. 12.8 In respect of the licences, agreements, authorisations and permissions under which any Group Company makes use of the Licensed IPR (Licences), so far as the Management Sellers are aware: 12.8.1 all of the Licences are in full force, to enable the relevant Group Company to use and continue to use the Licensed IPR; 12.8.2 none of the Licences are subject to any written notice: (i) of material breach; or (ii) given by any party to terminate them prior to the end of its term nor, so far as the Management Sellers are aware, are there any circumstances existing which constitute or might reasonably be expected to give rise to grounds for a counterparty to terminate, avoid or repudiate any Licence; and 12.8.3 each party to such Licence has complied with its terms in all material respects and none of the Licences are subject to any dispute. 12.9 Each element of the Business IT is owned by a Group Company or used under a written agreement, which is valid, subsisting and enforceable on the Group Company party thereto (and the other parties have fully complied with their obligations under such agreements in all material respects and no disputes have arisen or are foreseeable in respect of it), to ensure the Group is able to carry on its business in the manner and to the extent in which it is presently conducted, and all such Business IT shall be owned or available for use by the Group immediately after the date of this Agreement on the same terms and conditions as those under which the Group owned or used such Business IT immediately before the date of this Agreement. 12.10 So far as the Management Sellers are aware, in respect of Business IT referred to in paragraph 12.9, there are no circumstances existing which constitute or might reasonably be expected to give rise to grounds for a counterparty to terminate, avoid or repudiate any such agreement in respect of the Business IT. 12.11 So far as the Management Sellers are aware, the Business IT does not contain any material faults or any virus, Trojan horse, time bomb, key-lock, spyware, worm, malicious code or other Software designed or able to, without the knowledge or authorization of a Group Company, disrupt, disable, harm, exfiltrate, interfere with the operation of or install within or on any Software, computer data, network memory or hardware. 12.12 For the 12 months prior to the date of this Agreement: 12.12.1 there have been no failures, breakdowns, outages, or unavailability of any of the foregoing that have caused any material disruption to the business of any Group

 
- 81 - Company and there has been no unauthorized or improper access to Business IT; and 12.12.2 each Group Company has carried out regular penetration testing and information security audits on the Business IT and has taken commercially reasonable steps to remedy any weaknesses identified by such testing or audits, and has had in place adequate disaster recovery and business continuity plans to address a situation where there is a failure of the Business IT that would adversely affect the ability of the business to continue. 12.13 Each Group Company has at all times complied with, all applicable requirements of Data Protection Legislation. 12.14 Each Group Company has at all times complied with all applicable notification or registration obligations under Data Protection Legislation, including the payment of any requisite fees or charges. 12.15 Each Group Company has implemented physical, technical, organisational and administrative security measures designed to ensure compliance with Data Protection Legislation and to protect all Personal Information that the Company receives and stores against loss and unauthorised access, use, modification, disclosure or other misuse by third parties. So far as the Management Sellers are aware, each officer or employee of any Group Company has at all times complied with such measures. The Group Company has cybersecurity and data breach insurance that is adequate and suitable in respect of its Business IT assets and the nature and volume of Personal Information and other non-public information that any of them (or a third party on behalf of any of them) collects, stores, uses, maintains or transmits. 12.16 So far as the Management Sellers are aware, within the five years preceding the date of this Agreement, no Group Company has been adversely impacted by any unauthorized access to or use or corruption of Personal Information (including a ransomware or denial-of-service attack), or the unauthorized access, disclosure, use, corruption or loss of Personal Information or other non-public information or has otherwise been obligated to give notice to a Governmental Entity or any other person in accordance with applicable Data Protection Legislation or notified, or been required to notify, any supervisory authority or any other person about any such incident. 12.17 No Group Company (or member of the Sellers' Group) has received any written notice, complaint or allegation and no Group Company is subject to any investigation relating to any material breach or alleged material breach of Data Protection Legislation nor are there any circumstances which may give rise to any such notice, complaint, allegation or investigation. 12.18 So far as the Management Sellers are aware, no Personal Information has been transferred outside the European Economic Area or the UK by or on behalf of any Group Company otherwise than in accordance with the Data Protection Laws. 13. FINANCIAL OBLIGATIONS 13.1 Full details of all financial facilities, guarantees, security documents and Encumbrances (including loans, bonds and hedging instruments) outstanding or available to the Group Companies as at 17:00 UK time on 31 May 2024 (the Facilities) (including true and correct copies of all documents relating to the Facilities) are provided in, together, the Data Room at folder 3 and the Restricted Data Room at folder 12. Other than in respect of the Facilities, there is no outstanding guarantee, indemnity or similar assurance against loss or other

 
- 82 - security or arrangement having an effect equivalent to the granting of security given by, or for the benefit of, any Group Company. 13.2 The total amount borrowed by each Group Company does not exceed any limitation on its borrowing contained in its constitutional documents or in any debenture, charge or other document binding on the relevant Group Company. 13.3 No Group Company is responsible for, or has granted a guarantee in respect of, the indebtedness of any other person (other than another Group Company) or subject to any obligation to pay, purchase or provide funds for the payment of, or as an indemnity against the consequence of default in the payment of, any indebtedness of any other person (other than another Group Company). 13.4 No person other than a Group Company has given any guarantee of or security for any overdraft, loan or loan facility granted to any Group Company. 13.5 Full details of any aid, grant, subsidy, allowance, financial contribution or assistance made or given to each Group Company in the last six years, and all outstanding applications for any such aid, grant, subsidy, allowance, financial contribution or assistance, have been Fairly Disclosed and, so far as the Management Sellers are aware, no act or transaction has been effected or agreed to be effected in consequence of which any Group Company is or could be held liable to refund in whole or in part any such aid, grant, subsidy, allowance, financial contribution or assistance or in consequence of which any such aid, grant, subsidy, allowance, financial contribution or assistance for which application has been made will or may not be paid or will or may be reduced. 13.6 Having regard to the Facilities, the Group has sufficient working capital available to it for the purpose of carrying on its business as it is currently carried on and at its present level of turnover and for the purposes of executing and fulfilling in accordance with their terms all orders, projects and contractual obligations and discharging all liabilities which should properly be discharged during the period of 12 months from Closing. 13.7 No Group Company is responsible for the indebtedness of any other person or subject to any obligation to pay, purchase or provide funds for the payment of, or as an indemnity against the consequence of default in the payment of, any indebtedness of any other person (in each case excluding in respect of any director of a Group Company discharging their duties as director on behalf of such Group Company). 13.8 Each of the BCC Funding Commitment Letter and the BCC Loan Agreement is in full force and effect as at the date of this Agreement. 14. CONTRACTS AND RELATIONSHIPS 14.1 Copies of all Material Contracts are included in the Data Room, and: 14.1.1 each such Material Contract is valid, binding and lawful on the Group Company party thereto (and is valid, binding and lawful on the other parties thereto) and is, subject to the foregoing, in full force and effect; 14.1.2 so far as the Management Sellers are aware in respect of each Material Contract, the relevant Group Company and the other parties have complied with its terms in all material respects and there are no circumstances likely to give rise to a default by the relevant Group Company by any other party; and 14.1.3 no Group Company has given or received written notice to terminate it.

 
- 83 - 14.2 So far as the Management Sellers are aware, no Group Company has any knowledge of the invalidity of or grounds for rescission, avoidance or repudiation of any Material Contract to which any Group Company is a party and has received no notice of any intention to terminate, repudiate or disclaim any such Material Contract. 14.3 There are agreements in place with all current brokers, intermediaries and capacity providers in respect of each Group Company's insurance distribution activities, such agreements comply with Applicable Law and Regulatory Requirements, and complete and accurate copies of such agreements entered into in the three-year period prior to the date of this Agreement (for this purpose, including terms of business agreements and producer agreements but excluding (a) (i) MGA agreements, (ii) facility agreements and/or (iii) line slip agreements, in the case of (i), (ii) and/or (iii) entered into by or on behalf of either or both of the Syndicates using the services of any Group Company; and/or (b) any other agreement entered into by Asta Managing Agency Ltd and/or Asta Underwriting Management Ltd on behalf of either or both of the Syndicates) have been included in the Data Room. 14.4 No contract entered into by a Group Company: 14.4.1 limits or excludes the rights of such Group Company to do business and/or to compete in any area or in any field or with any person in any material way; 14.4.2 is entered into otherwise than on an arm's length basis or otherwise than in the ordinary and normal course of its trading; 14.4.3 is a guarantee or indemnity in respect of the obligations of another person (other than another Group Company) under which any liability (whether actual, contingent or otherwise) is outstanding; or 14.4.4 involves the sale or disposal of any company or business in circumstances that the relevant Group Company remains subject to any liability (whether actual, contingent or otherwise) which is not provided for in the Accounts or the Locked Box Accounts. 14.5 The Data Room contains up-to-date copies (including the latest amendments, if any) of all of the Group's in-force (i) material binding authority agreements and/or coverholder agreements entered into between any Group Company and a capacity provider (and for the avoidance of doubt excluding any third-party binding authority agreements), (ii) services agreements in respect of the open Years of Account; and (iii) consortium agreements. 14.6 Neither any Group Company nor, so far as the Management Sellers are aware, any of its permitted delegates or sub delegates has underwritten any business outside that allowed under the Material Contracts whether by class of business or by territory (other than procedural breaches of underwriting guidelines that did not require further material action following reporting to the syndicate boards of the Syndicates). 14.7 No indebtedness or other liability (whether actual or contingent) owing: 14.7.1 by any Group Company to any Seller or a director of any Group Company or a Connected Person or any such director (save for dividends declared, remuneration accrued due for the current pay period, accrued holiday pay for the current holiday year, accrued bonuses for the current bonus period and expenses claims); or 14.7.2 to any Group Company by any Seller or a director of any Group Company or a Connected Person or any such director, is outstanding nor is any guarantee or security for any such indebtedness or liability.

 
- 84 - 14.8 No agreement, arrangement or understanding (whether legally enforceable or not) is outstanding to which any Group Company is a party in which: 14.8.1 any director or former director of any Group Company or a Connected Person of such a director or former director is directly or indirectly interested; or 14.8.2 any Seller or any Connected Person or Affiliate of any of the Sellers is interested, in each case save for those in the ordinary course of business, including in respect of the discharge of duties as a director or for the sale or supply of goods and services on arm's length commercial terms. 14.9 All transactions between any Group Company and any Seller or any Connected Person or Affiliate of any of the Sellers have been on arm’s length terms and no Group Company has had its profits or financial position during the last three years affected by any agreement or arrangement not on arm’s length terms. 14.10 Neither the Sellers nor any Connected Person or Affiliate of any of the Sellers provide goods, services or facilities to any Group Company which, if stopped, would materially affect the relevant Group Company or require material expenditure to replace. 14.11 So far as the Management Sellers are aware, no Seller, and no Connected Person or Affiliate of any of the Sellers, nor any director of any Group Company, either individually or with any other person or persons, has any direct or indirect interest in any business which has a trading relationship with any Group Company or which is or is likely to become competitive with all or any part of the Business. 14.12 So far as the Management Sellers are aware, each Group Company has legal and beneficial title (free from any Encumbrance, hire or hire purchase agreement, leasing agreement, credit sale agreement or agreement for payment on deferred terms) to all assets of the relevant Group Company which: 14.12.1 are included in the Accounts; 14.12.2 have been acquired by the relevant Group Company since the Accounts Date, and all such assets are in the possession and control of the relevant Group Company. 14.13 There are no powers of attorney granted by any Group Company which are currently in force nor any other authority (express, implied or ostensible) given by any Group Company to any person to enter into any contract or commitment or do anything on its behalf. 14.14 So far as the Management Sellers are aware, nothing done in compliance with the terms of this Agreement will: (i) cause any Group Company to lose the benefit of any right, privilege or licence it presently enjoys or cause any person who normally does business with the relevant Group Company not to continue to do so on the same basis as previously; (ii) relieve any person of any obligation to any Group Company (whether contractual or otherwise) or entitle any person to determine or terminate any contract or arrangement with any Group Company or to exercise any right whether under an agreement or arrangement with any Group Company or otherwise; (iii) conflict with or result in the breach on the part of any Group Company under any of the terms, conditions or provisions of any Material Contract to which any Group Company is now a party; and (iv) result in any present or future indebtedness of any Group Company becoming due and payable or capable of being declared due and payable prior to its stated maturity.

 
- 85 - 14.15 No capacity provider providing more than 10% of the aggregate underwriting capacity used by the Group during the financial year ending on the Last Accounts Date has ceased, or indicated an intention to cease providing capacity to the Group. 15. INSURANCE 15.1 The Data Room contains (a) an accurate summary of particulars of the insurance policies maintained by or on behalf of any Group Company; and (b) details of all insurance claims made by any Group Company in the last 12 months. All premiums in respect of such policies have been duly paid to date and all the policies are in full force and effect. 15.2 So far as the Management Sellers are aware, there are no circumstances which might lead to any liability under such insurance being avoided by the insurers or to the premiums being abnormally increased and there is no written claim outstanding under any insurance policy. 16. PREMISES 16.1 In this paragraph, Lease shall mean the lease of the respective Premises. 16.2 The Premises comprise all the land and premises owned, controlled, used or occupied by each Group at the date of this Agreement. 16.3 No Group Company has any liability (whether actual, contingent or otherwise) as tenant, assignee, guarantor, covenantor or otherwise arising from or relating to any estate, interest or right in any land and buildings other than the Premises. 16.4 No dispute exists between any Group Company and any other person in respect of the Premises. 16.5 In relation to each Lease, all rent and other sums payable by the tenant have been paid as and when they have become due and there are no circumstances which would entitle any third party to exercise a right of entry to or take possession of any of the respective Premises or which would in any way affect or restrict the continued possession or use of any of the Premises in accordance with the terms of its respective Lease. 17. TAX 17.1 All computations, returns, notices and other information, which are or have been required by law to be filed with or provided to any Tax Authority on or before the date of this Agreement by each Group Company for any Taxation purpose have been made on a proper basis, remain true and correct in all material respects, and have been filed or provided within the requisite period and none of them is or is likely to be the subject of any dispute with or investigation or enquiry by any Tax Authority or is disputed by, or subject to agreement with, a Tax Authority. 17.2 Each Group Company has duly and timely paid all Taxation for which it is or has been liable to pay on or before the date of this Agreement (including all such amounts required to be accounted for by way of withholding, deduction or retention) and has not been, and is not, under any liability to pay any material penalty, fine, surcharge or interest in respect of Taxation and the Accounts make provision, within generally accepted accounting principles, for all Taxation (including deferred Tax) in respect of all taxable profits earned, accrued or received (including to the extent deemed to be earned, accrued or received) or in respect of any Event occurring or deemed to occur in either case on or before the Accounts Date. 17.3 Each Group Company maintains complete and accurate records in relation to Taxation as required by all relevant legal requirements.

 
- 86 - 17.4 Since the Accounts Date the Group Companies have not been party to any transaction and no circumstances have arisen which could result in any of the Group Companies being subject to a liability to Taxation other than Taxation for which it is liable in the ordinary course of its business. 17.5 Each Group Company is and has at all times been exclusively resident for all Taxation purposes and subject to Taxation in its jurisdiction of incorporation, and has not at any time been resident or had a branch, permanent establishment, or other taxable presence outside the country of its incorporation for any Taxation purpose. 17.6 No Group Company is or has within the past six years been subject to any non-routine audit, investigation, dispute or litigation involving any Tax Authority and the Sellers are not aware of any circumstances existing which make it likely that any Group Company will be subject to a non-routine visit, audit, enquiry, investigation, discovery or access order involving any Tax Authority, or party to any dispute involving any Tax Authority will occur, in each case in the next 12 months. 17.7 No Group Company is or has been, for VAT purposes, a member of any group of companies (other than comprised of members of the Group). Each Group Company has complied in all material respects with all statutory requirements, orders, provisions, directions or conditions relating to VAT, including (for the avoidance of doubt) the terms of any written agreement reached with any appropriate Tax Authority. 17.8 There is no arrangement by which any Group Company may become liable to repay a sum paid to it for the surrender of any loss, allowance or other amount eligible for surrender by way of group relief in accordance with the provisions contained in Part 5 of the CTA 2010. 17.9 No Group Company has been a party to any transaction of which the main purpose, or one of the main purposes, was the avoidance of, or the reduction of, or the deferral of a liability to Tax. 17.10 All documents by virtue of which each Group Company has any right or which each Group Company may wish to enforce or produce in evidence in respect of assets owned by each Group Company are duly stamped for stamp duty purposes or have had the transfer or registration tax due in respect of them paid. 17.11 No Group Company is bound by or a party to any Tax indemnity, Tax sharing or Tax allocation agreement in respect of which claims against that Group Company would not be time barred. 17.12 All restricted securities (as defined in section 423 of the Income Tax (Earnings and Pensions) Act (ITEPA) 2003) acquired by any current, former or proposed employees or directors of any Group Company (or any nominees or associates of such employees or directors) in the six years preceding the date of this Agreement were acquired at an unrestricted market value and a valid joint election fully to disapply Chapter 2 of Part 7 of ITEPA 2003 has been made under section 431(1) of ITEPA 2003 for all such restricted securities. 17.13 No person has acquired or disposed of, or entered into any transaction pursuant to which that person may acquire or dispose of, or otherwise entered into any transaction involving securities, interests in securities or securities options that would give rise to a liability of any Group Company to account for Tax under Part 7 of the Income Tax (Earnings and Pensions) Act 2003 or Part I of the Social Security Contributions and Benefits Act 1992. 17.14 No Group Company has entered into any transaction that has not been made on arm’s length terms.

 
- 87 - 17.15 No Group Company has participated in any arrangement which was reportable under The International Tax Enforcement (Disclosable Arrangements) Regulations 2023 (SI 2023/38), the EU Council Directive 2011/16 or any equivalent mandatory disclosure regime.

 
- 88 - SCHEDULE 7 RESERVED MATTERS [***]

 
- 89 - SCHEDULE 8 [Schedule intentionally left blank]

 
- 90 - SCHEDULE 9 DEBT COOPERATION PROVISIONS 1. Interpretation 1.1 In this Schedule 9, capitalised terms not defined herein have the meaning given to them in Clause 1.1 (Definitions) and the following words and expressions shall have the meanings set out below: Debt Financing Sources means the persons (including the lenders and each agent and arranger) that have committed to provide, or have otherwise entered into agreements in connection with the Debt Financing, and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto (the Debt Financing Parties), together with their respective Affiliates, and the respective officers, directors, employees, partners, trustees, shareholders, controlling persons, agents and representatives of the foregoing, and their respective successors and assigns; Excluded Information means (i) any description of post-Closing capital structure, including descriptions of indebtedness or equity of the Company or any of its Affiliates (including the Group Companies on or after the Closing Date), (ii) any description of the Debt Financing (including any such descriptions to be included in liquidity and capital resources disclosure and any “description of notes”) or any information customarily provided by a lead arranger, underwriter or initial purchaser in a customary information memorandum or offering memorandum for a secured bank financing or high yield debt securities, as applicable, including sections customarily drafted by a lead arranger or an initial purchaser or underwriter, such as those regarding confidentiality, timelines, syndication process, limitations of liability and plan of distribution, (iii) any information regarding any post-Closing or pro forma cost savings, synergies or other pro forma adjustments or any pro forma or projected information (other than as required by clause (b) of the definition of “Required Information”), (iv) any information with respect to any Person other than the Group Companies, and (v) risk factors relating to all or any component of the Debt Financing. Representative means any person’s Affiliates, directors, officers, employees, managers, consultants, accountants, legal advisers, investment bankers, agents, advisers and representatives; and Required Information means: (a) the following information: (i) the audited consolidated accounts of the Company (including the consolidated statement of financial position, consolidated statement of comprehensive income, consolidated statement of changes in equity, consolidated statement of cash flows and the notes included therein) for the two most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date, respectively, together with all related notes and schedules thereto, and in each case accompanied by the audit reports thereon of the Sellers’ auditor; (ii) the unaudited consolidated accounts of the Company (including the consolidated statement of financial position, consolidated statement of comprehensive income, consolidated statement of changes in equity, consolidated statement of cash flows and the notes included therein) for any

 
- 91 - subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date and the portion of the fiscal year through the end of such quarter (other than in each case the fourth quarter of any fiscal year) and, in each case, for the comparable period of the prior fiscal year, together with all related notes and schedules thereto; and (iii) in the case of each of paragraphs (a)(i) and (ii) above, prepared in accordance with accounting principles, standards and practices generally accepted in the United Kingdom, together with a reconciliation to generally accepted accounting principles in the United States applied on a consistent basis (U.S. GAAP); (b) historical financial statements and other customary financial information which are, in each case, reasonably necessary to allow Purchaser to prepare pro forma financial statements required by Article II of Regulation S-K (including for the most recent four (4) fiscal quarter periods ended at least forty (40) days prior to the Closing Date (or, if the end of the most recently completed four (4) fiscal quarter periods is the end of a fiscal year, ended at least sixty (60) days prior to the Closing Date)) that give effect to the transactions contemplated hereunder as if the transactions had occurred as of such date (in the case of such consolidated accounts) or at the beginning of such period (in the case of such statement of income) and which are prepared in accordance with U.S. GAAP; (c) any replacements or restatements of and supplements to the information specified in paragraphs (a) and (b) above if any such information would contain a material misstatement or omission, or otherwise be unusable for such purposes; (d) the consents of auditors for use of their unqualified audit reports on the audited historical financial statements of the Company in any offering document relating to the Debt Financing; (e) historical financial or other customary information (including business information, risk factors, due diligence and support for statistical information) regarding the Company reasonably requested in connection with the preparation of bank information memoranda, lenders’ presentations and other customary marketing materials relevant to the Debt Financing; (f) the draft customary authorisation letters referred to in Section 2.1.5; and (g) the draft comfort letters referred to in Section 2.1.11. 2. Financing Co-Operation 2.1 Subject to paragraph 2.2 (and, in particular, paragraphs 2.2.7 to 2.2.9 (inclusive)), during the period between the date of this Agreement and the Closing Date, upon the reasonable request of the Purchaser, and at the Purchaser’s sole cost and expense, the Company shall use, and shall use reasonable endeavours to cause any of the Subsidiaries and its and their and its and their respective Representatives to use, reasonable endeavours to cooperate with the Purchaser as necessary in connection with the arrangement and obtaining of the Debt Financing as may be reasonably requested by the Purchaser, in accordance with the terms of the Debt Commitment Papers, and is customary for financing of such type (provided that such requested co-operation does not unreasonably interfere with the ongoing operations of the Group Companies) including:

 
- 92 - 2.1.1 furnishing the Purchaser and the Debt Financing Sources, as promptly as reasonably practicable, with the Required Information (which Required Information in any event shall be received by Purchaser and the Debt Financing Sources no later than 15 Business Days prior to the Closing Date); 2.1.2 upon reasonable advance notice, causing senior management of the Group Companies to participate in a reasonable number of sessions with rating agencies, due diligence sessions, drafting sessions and roadshows in connection with the Debt Financing, at times and locations reasonably acceptable to the Company (it being understood that any such meeting may take place via videoconference or web conference); 2.1.3 to the extent related to the Group Companies and the business and financial information of the Group Companies, assisting Purchaser with the preparation of customary materials for rating agency presentations, offering memoranda, bank information memoranda, syndication memoranda, prospectuses or prospectus supplements, lender presentations and other customary marketing materials required in connection with the Debt Financing (collectively, the Debt Marketing Materials) to the extent requested by the Debt Financing Sources, executed certificates of the chief financial officer (or other comparable officer) of the Company with respect to financial information of the Group Companies included in the Debt Marketing Materials; 2.1.4 providing reasonable co-operation with the due diligence efforts of the Debt Financing Sources to the extent reasonable and customary (and, to the extent applicable, subject to the limitations contained in this Agreement); 2.1.5 providing customary authorisation letters with respect to the Company authorising the distribution of information with respect to the Group Companies to prospective lenders and investors (including customary 10b-5 and material non-public information representations); 2.1.6 promptly, and in any event no later than four (4) Business Days prior to the Closing, providing all documentation and other information that any lender, provider or arranger of any Debt Financing has reasonably requested in connection with such Debt Financing under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L.107-56 (signed into law October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time), in each case, as requested at least nine (9) Business Days prior to the Closing Date; 2.1.7 assisting Purchaser in its preparation of any definitive financing documents, including any credit agreement, indentures, notes, guarantee and collateral documents, pledge and security documents relating to the Purchaser's shares in the Company to be acquired on Closing, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Debt Financing (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company) and other customary documents as may, in each case, be reasonably requested by Purchaser or the Debt Financing Sources, but in no event shall any of the items described in this paragraph 2.1.7 of this Schedule 9 (i) be effective until, as of or after Closing or (ii) relate to any security interests other than security interests granted in the equity interests of the Company in connection with the Debt Financing;

 
- 93 - 2.1.8 taking reasonable steps to facilitate the pledging of, granting of security interests in and obtaining perfection of any liens on the Purchaser's equity interests in the Company in connection with the Debt Financing, but in no event shall any of the items described in this paragraph 2.1.8 of this Schedule 9 be effective until, as of or after Closing; 2.1.9 having the Company take all corporate, limited liability company, partnership or other similar actions reasonably requested by the Purchaser or any Debt Financing Source to permit the consummation of the Debt Financing; provided that no such actions shall be required to be effective prior to Closing; provided, further, that no such actions shall relate to any security interests other than security interests granted in the equity interests of the Company in connection with the Debt Financing; 2.1.10 causing the Company’s auditor (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in an offering memorandum) to furnish to the Purchaser and the Debt Financing Sources, consistent with customary practice, customary comfort letters (including “negative assurance” comfort and change period comfort, if appropriate) and consents, but only with respect to financial information relating to the Company or Group Companies, as reasonably requested by the Purchaser or the Debt Financing Sources as necessary or customary for the capital markets transaction comprising the Debt Financing; and 2.1.11 otherwise reasonably cooperating with the Purchaser to facilitate the satisfaction by the Purchaser of the conditions precedent to the Debt Financing to the extent within the control and capacity of the Company; provided that, for the avoidance of doubt, the Company and its Subsidiaries shall not be required under this Schedule 9 to deliver any Excluded Information. 2.2 Notwithstanding anything in the foregoing sentence to the contrary, nothing in paragraph 2.1 of this Schedule 9 shall require such cooperation to the extent it would: 2.2.1 unreasonably and materially disrupt or interfere with the business or operations of any of the Sellers or the Group Companies; 2.2.2 (i) conflict with or violate the constitutional documents of the Group Companies or any Applicable Law or (ii) result in the contravention of, or reasonably be expected to result in a violation or breach of, or default under, any material contract to which any of the Group Companies are a party; 2.2.3 cause any of the Sellers or the Group Companies to breach any representation, warranty, covenant or agreement in this Agreement or any Transaction Document; 2.2.4 require any Seller or any Group Company to: (a) agree to pay any fees or reimburse any expenses unless such fees and expenses are subject to the expense reimbursement provisions set forth in paragraph 2.3 of this Schedule 9 or to incur any other liabilities unless such liabilities are subject to the indemnity set forth in paragraph 2.4 of this Schedule 9; (b) give any indemnities; (c) enter into, become subject to, approve or deliver any agreement relating to the Debt Financing (in the case of any Group Company, that is effective prior

 
- 94 - to Closing or that would be effective if Closing did not occur), except, in the case of the Company: (i) any certificate of the chief financial officer of the Company (as an officer of the Company) described in paragraph 2.1.3 of this Schedule 9 that is required to be delivered upon closing of the Debt Financing; (ii) the authorisation letters set forth in paragraph 2.1.5 of this Schedule 9; and (iii) the representation letters required by Sellers’ auditor in connection with the delivery of “comfort letters” set forth in paragraph 2.1.11 of this Schedule 9; 2.2.5 the “know-your-customer” and anti-money laundering documents described in paragraph 2.1.6 of this Schedule 9; be an issuer or obligor with respect to the Debt Financing prior to Closing; 2.2.6 require their respective boards of directors or equivalent governing bodies or officers to pass resolutions or consents to approve or authorise any such agreement with respect to the Debt Financing prior to Closing; or 2.2.7 require any director, officer or other employee of any Group Company or any Seller, to take any action (including the delivery of any certificate) that would reasonably be expected to result in personal liability to such director, officer or employee and in the case of any director, take any action inconsistent with their fiduciary duties; 2.2.8 require any Group Company to take any action that would reasonably be expected to result in liability to such Group Company (other than in the case of fraud or fraudulent misrepresentation by such Group Company); or 2.2.9 require any director, officer or other employee of any Group Company or of any Seller, to deliver any legal opinion or otherwise provide any information or take any action to the extent it would result in a loss or waiver of any privilege. 2.3 The Purchaser shall, promptly after written request by the Sellers or any Group Company, reimburse the Sellers and the Group Companies for all costs and expenses (including, to the extent incurred at the request or consent of the Purchaser, reasonable legal fees) incurred by any Group Company prior to the Closing Date in connection with the Debt Financing, including the cooperation contemplated by this paragraph 2 of this Schedule 9. The Purchaser shall reimburse the Sellers and the Group Companies for the costs (including the premium, any brokerage, and all taxes) of arranging appropriate insurance in relation to the Debt Financing. 2.4 The Purchaser shall indemnify (i) each Seller and (ii) the Group Companies from, against and in respect of all losses, damages, claims, costs or expenses (including reasonable legal fees) actually suffered or incurred by such Seller or the Group Companies or any of its or their respective Representatives in connection with the Debt Financing and any information used in connection therewith to the fullest extent permitted by Applicable Law, except to the extent that any of the foregoing arises from the fraud or fraudulent misrepresentation of the Sellers or the Group Companies or any of their respective Representatives, as applicable, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 
- 95 - 2.5 The Company hereby consents to the use of its logos, names and trademarks in connection with the Debt Financing; provided that such logos, names and trademarks are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company.

 
- 96 - SCHEDULE 10 THIRD PARTY CONSENTS [***]

 
- 97 - SCHEDULE 11 LIST OF RELEVANT EMPLOYEES [***]

 
- 97 - SCHEDULE 12 MATTERS REFERRED TO IN CLAUSE 6.1.6(E) [***]

 
- 99 - The shareholders' agreement of Brace Underwriting Limited and its articles of association may be updated (and ancillary corporate approvals and actions taken) solely insofar as is necessary to effect the above actions.

 
- 100 - Execution pages Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
- 101 - Executed as a deed by Colemont UK Holdings Limited acting by a director in the presence of: ) ) Witness: Signature: ...................................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Executed as a deed by Paraline Group, Ltd, acting by a director who, in accordance with the laws of Bermuda, is acting under the authority of the company ) ) ) ) Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
- 102 - Executed as a deed by Cirrata V LLC, acting by an officer who, in accordance with the laws of the State of Delaware, is acting under the authority of the company /s/ Claude LeBlanc................................................. Name: Claude LeBlanc Title: President and Chief Executive Officer Executed as a deed by Ambac Financial Group, Inc., acting by an officer who, in accordance with the laws of the State of Delaware, is acting under the authority of the company /s/ Claude LeBlanc................................................. Name: Claude LeBlanc Title: President and Chief Executive Officer

 
- 103 - Executed as a deed by BCC Buffalo Bidco Limited, acting by a director who, in accordance with the laws of Jersey, is acting under the authority of the company ) ) ) ) Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
- 104 - Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
- 105 - Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Executed as a deed by [***] as trustee of the [***] Revocable Trust of 2022 on behalf of itself and its beneficiaries in the presence of: ) ) ) ) ) Witness: Signature: /s/ [***]. ......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ................................................................................................................... Signed as a deed by [***] in the presence of: ) Witness: Signature: /s/ [***] .......................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
- 106 - Executed as a deed by Beat Capital Partners Limited acting by a director in the presence of: ) ) Witness: Signature: ...................................................................................................................... Name: ........................................................................................................................... Address: ........................................................................................................................ Occupation: ...................................................................................................................

 
Strictly Confidential
EXECUTION VERSION         Exhibit 10.1


CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS AGREEMENT (INDICATED BY “[***]”) BECAUSE SUCH INFORMATION IS BOTH NOT MATERIAL AND THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
(1) THE EXISTING SHAREHOLDERS
(2) CIRRATA V LLC
(3) AMBAC FINANCIAL GROUP, INC.
and
(4) BEAT CAPITAL PARTNERS LIMITED
SHAREHOLDERS' AGREEMENT
relating to Beat Capital Partners Limited


Contents

1. Definitions and interpretation     2
2. Termination of Previous Shareholders' Agreement     20
3. The Business of the Company     20
4. The Board     21
5. Reserved Matters     26
6. Budgets and financial information     26
7. Underwriting franchise management     28
8. Management incentive plan     29
9. Special long-term incentive plan     29
10. Company property and Intellectual Property     29
11. Shareholder restrictions     29
12. Insurance     33
13. Transfers of Shares     33
14. General Transfer Terms     52
15. Leavers     54
16. Obligations of Outgoing Shareholder     55
17. Duration and termination     55
18. Confidentiality     56
19. Compliance     58
20. Guarantee     58
21. Entire Agreement     60
22. Notices     60
23. Damages not an adequate remedy     61
24. Conflict with the Articles     61
25. Costs     61
26. Registration, Stamp, Transfer Taxes and Duties     61
27. Waiver     62
28. Further Assurance     62
29. Unlawful fetter     62
30. Several liability     62
31. Severance     62
32. No partnership     62
33. Variation     62
34. Assignment     63
35. Rights of Third Parties     63
36. Counterparts     63
37. Governing Law and Jurisdiction     63
38. Process Agent     63
Schedule 1 : Shareholders     65
Schedule 2 : Deed of Adherence [***]     67
Schedule 3 : Reserved Matters [***]     70
Schedule 4 : Board Matters [***]     71
Schedule 5 : Adjusted EBITDA [***]     75
Schedule 6 : Extracts from previous Shareholders’ Agreements [***]     85


Schedule 7 : MIP Summary Terms [***]     88
Schedule 8 : Underwriting Franchise Management for existing Subsidiaries [***]     93


Dated     1 August 2024
BETWEEN:
(1)THOSE PERSONS LISTED IN Part B of Schedule 1 (the "Existing Shareholders");
(2)CIRRATA V LLC, a Limited Liability Company organised and existing under the laws of the State of Delaware ("Cirrata");
(3)AMBAC FINANCIAL GROUP, INC., a Corporation incorporated and existing under the laws of the State of Delaware ("Ambac") for the purpose of clause 20 only; and
(4)BEAT CAPITAL PARTNERS LIMITED, a limited liability company incorporated and existing under the laws of England and Wales (with registered number 10198821) whose registered address is at 5th Floor, 6 Bevis Marks, London, EC3A 7BA ("Company").
BACKGROUND
(A)The Company was originally incorporated on 25 May 2016 as the vehicle for the establishment of an underwriting management business.
(B)Cirrata acquired Shares through the acquisition of Shares from the Existing Shareholders, and other then-shareholders of the Company, pursuant to a share purchase agreement between the Existing Shareholders and Cirrata, inter alia, dated 4 June 2024 (the "Share Purchase Agreement").
(C)Immediately prior to completion of the Share Purchase Agreement, the Share Capital was organised in the manner set out in Schedule 1.
(D)The Existing Shareholders, Cirrata and the Company have agreed to enter into this Deed in order to govern the interaction and relationship between themselves and the ongoing conduct and organisation of the Company and the Business, on the terms and subject to the conditions set out in this Deed.
It is agreed as follows:
1.Definitions and interpretation
1.1The definitions and rules of interpretation in this clause apply in this Deed, including the Background:
"Accounting Reference Date"
31 December (or such other date as determined in accordance with this Deed);
"Additional Shares"
as defined in clause 13.2.1(a)(i)(c);
"Adjusted EBITDA"
has the meaning given to it in Schedule 5;
"Affected Shareholder"
as defined in clause 33;
"Agreed Retirement Circumstances"
in respect of any of John Cavanagh, Tom Milligan, Paul Rayner and Tim Shelley, where such person becomes a Leaver and each of the following conditions are met:
(a)such person remains an employee, director or consultant of a Group Company until at least three years following the date of Completion (notwithstanding that, for part of such period, such person may have given or received notice to terminate their employment, directorship and/or engagement);
(b)such person gives at least 12 months' notice to terminate their employment, directorship and/or engagement (as applicable), such notice not to be given prior to the second anniversary of Completion;
(c)at the time such person gives notice to terminate their employment, directorship and/or engagement (as applicable), none other of John Cavanagh, Tom Milligan, Paul Rayner or Tim Shelley (as applicable) has given notice to terminate their employment, directorship and/or engagement (as applicable) in the prior 12 months (and, if more than one of such four individuals gives notice to terminate in any 12 month period, the Agreed Retirement Circumstances will only apply to the first such person to give notice of termination in that 12 month period);
(d)such person has complied in all material respects with all restrictive covenants in the Share Purchase Agreement, this Deed, any applicable employment or service agreement or any other agreement with any Group Company;
(e)such person has used reasonable efforts to implement an appropriate succession plan with the Company (such plan to be approved in writing by Cirrata and the Board); and
(f)such person resigns by reason of Bona Fide Retirement;
2

"Ambac Group"
Ambac and each of its subsidiaries and subsidiary undertakings from time to time, excluding the Group;
"Ambac Stock"
duly authorised, validly issued, fully paid and non-assessable shares of common stock, par value $0.01 per share, of Ambac;
“Ambac Stock Price”
as defined in clause 13.2.9(a)(i);
"Articles"
the articles of association of the Company from time to time;
"Associated Company"
in relation to a relevant company, any subsidiary, undertaking or parent of that company or any subsidiary undertaking of that parent company, including, where used in respect of BCC, (a) any Fund in respect of which (i) that relevant company (or any subsidiary or parent of that company or any subsidiary undertaking of that parent company); or (ii) that relevant company's (or its subsidiary or parent of that company or any subsidiary undertaking of that parent company) general partner, trustee, or nominee, manager or adviser (excluding professional advisers), in either case, is a general partner, trustee, or nominee, manager or adviser or (b) any Associated Company of the relevant Fund, save that where used in relation to BCC for the purpose of clause 13.1.3, any co-investment vehicle or partnership of BCC shall be an Associated Company only where such entity is Controlled by another Associated Company of BCC, and provided further any entity which is either a Competitor or a person other than a Fund in respect of which a Competitor is its primary asset shall not be an Associated Company;
"Associated Person"
in relation to any person, any officer, employee, consultant, agent, representative or professional advisor or other person who performs services for or on that person's behalf;
“Attorney”
as defined in clause 13.6.1;
"Auditors"
Ernst & Young LLP or such other auditor as may be appointed from time to time in accordance with this Deed;
3

"Bad Leaver"
any Management Shareholder:
(a)who becomes a Leaver other than in circumstances where they are a Good Leaver including:
(i)dismissal in circumstances justifying lawful summary dismissal;
(ii)lawful dismissal for breach of any restrictive covenant in this Deed (save that an immaterial procedural irregularity shall not make an otherwise lawful dismissal unlawful); and
(iii)resignation (other than resignation for Good Reason); or
(b)who having been a Good Leaver subsequently becomes a Bad Leaver pursuant to the operation of clause 15.7;
"BCC"
BCC Buffalo Bidco Limited;
"BCC Corporate Member"
BCC CCM Limited, with company registration number 12795757;
"Board"
the board of directors of the Company;
"Board Matter"
each matter set out in Schedule 4;
“Bona Fide Retirement”
resignation by an employee, director or consultant of a Group Company without the intention of taking up new employment or a directorship in a financial services or insurance business during the Restricted Period, other than acting as a part-time non-executive director in a business that is not conducting a Competing Activity;
"Budget"
the budget for the Group, approved or amended from time to time by the Board;
"Business"
the profession, trade or business of underwriting insurance or reinsurance business on behalf of third parties to be carried on by the Company and/or any Subsidiaries or any such other business determined by the Board in accordance with this Deed;
"Business Day"
a day other than a Saturday, Sunday or public holiday in London, United Kingdom or New York City, USA;
"Business Plan"
the plan for the Business and related forecasts and projections, including proposals for the establishment of further Subsidiaries, as may be amended from time to time by the Board;
4

"Callable Shares"
in respect of a Called Shareholder:
(a)on a proposed sale of Cirrata's Shares which would result in a Loss of Control but not a Change of Control, such number of Shares which represents the same proportion of Shares as Cirrata proposes to sell to the Proposed Buyer; and
(b)on a proposed sale of Cirrata's Shares which would result in a Change of Control, all of the Shares held by the Called Shareholder;
"Called Shareholder"
as defined in clause 13.4.1(a);
"Called Shares"
means all Called Shares for which Cirrata has exercised its Drag Along Option;
"Call Option"
as defined in clause 13.2.2;
“Cash Held for Working Capital Requirement”
an amount equal to estimated trapped cash of the Company or the relevant Subsidiary based on three months’ budgeted expenses, which are to be assessed by the Board as budgeted expenses (including the estimated bonus payment but excluding expenses recharged, whether through a service fee for personnel services or an expense recharge to a Syndicate by a Group Company save for any profit element in such recharged expenses) less budgeted investment income for the following financial year, divided by four; which estimate will be undertaken on a Group Company by Group Company basis, with adjustment made for the Company’s ownership stake
"Change of Control"
a transaction or series of transactions pursuant to which a person or connected persons acting in concert (other than a person who is a member of the Ambac Group) acquires a majority of either the Shares then in issue (or the shares or other equity securities of Cirrata or any new holding company of the Company or Cirrata formed for the purpose of facilitating such transaction or transactions);
“Closing Date”
as defined in clause 13.2.9;
"Companies Act 2006"
the relevant provisions of the Companies Act 2006 (as amended), as are applied to companies in accordance with regulations made under that Act;
5

“Competing Activity”
being engaged (including as an employee, director, consultant or investor) in any trade or business which competes with the business of the Group at the relevant time:
(a)that is predominantly a managing general underwriter (“MGU”) or MGA business operating in London, Bermuda and/or the USA; or
(b)that is involved in the development or launch of any new MGA or MGU businesses and such employment, directorship, consultancy or other engagement is directly involved in such development or launch; or
(c)that is part of a large, diversified insurance group and such employment, directorship, consultancy or engagement is personally involved in any MGA or MGU activities within the group and for these purposes “personally involved” shall not include where the person’s only involvement is as a director, employee, consultant or other engagement with another company in the group (including a holding company) that does not itself carry out MGA or MGU activities; or
(d)that is involved in any MGA or MGU activities and in that context (including in the context of any of the businesses in (a)-(c) above) such employment, directorship, consultancy or other engagement includes directly soliciting underwriting capacity partners of the Group, for the purposes of underwriting capacity for the MGA or MGU activities, to the extent such capacity partnerships were in force or being negotiated at the time of the relevant individual’s employment, directorship, consultancy or other engagement with the Group or soliciting existing insurance and/or reinsurance clients of the Group; or
(e)that is predominantly engaged in a business activity that is not conducted by the Group on 1 January 2024 (other than the operation of a Lloyd’s managing agent) but is commenced by any Group Company after such date and prior to the relevant individual's employment, directorship, consultancy or engagement with the Group being resigned by the individual or otherwise terminated, and where such business activity is a material activity of the Group in relation to the financial result of the Group as a whole;
but excluding being the holder or beneficial owner by way of bona fide personal investment, of any class of securities in any listed company and not in excess of 5% of the issued share capital of such listed company.
"Competitive Information"
Confidential Information which is sensitive and specific commercial information relating to a Group Company, including any of the following types: (i) internal financial information relating to revenue, costs, profit margins, cash flow, asset and liabilities; (ii) underwriting data; (iii) information on current and future customer proposition, including pricing and commercial terms; (iv) auction bid information; (v) economic and commercial terms of individual contracts or agreements with customers or suppliers; and (vi) individual data of brokers, underwritings, capacity providers, customers and suppliers;
"Competitor"
any entity engaging in any trade or business that competes with the business of the Group at the relevant time including any trade of business:
(a)    that is predominantly an MGU or MGA business operating in London, Bermuda and/or the USA; or
(b)    is involved in the development or launch of any new MGA or MGU businesses; or
(c)    that is predominantly engaged in a business activity that is not conducted by the Group at the date of this Deed (other than the operation of a Lloyd’s managing agent) but is commenced by any Group Company after the date of this Deed and where such business activity is a material activity of the Group in relation to the financial result of the Group as a whole;
"Completion"
____ August 2024 being the date of completion of Cirrata's obligations under the Share Purchase Agreement which the parties have agreed was effective as of 11:59 p.m. (London time) on 31 July 2024;
"Confidential Information"
any of the following information, documents, papers or property which, at any time, comes into the possession or under the control of any Group Company or any Shareholder in the course of the Business and which the relevant Group Company or Shareholder regards or could reasonably be expected to regard as confidential, whether or not such information is, in itself, confidential, marked as "confidential" or reduced to tangible form:
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(a)the existence of and provisions of this Deed (including the name of the parties to such agreement) and the process of their negotiation;
(b)any information relating to any Shareholder or its Associated Companies, or, in respect of any Existing Shareholder only, the Company, any Group Company or the Business;
(a)in respect of any Existing Shareholder only, any information relating to the prospective business, technical processes or other know-how, computer software, Intellectual Property or finances of any Group Company, including price lists, lists and details of clients and suppliers;
(a)in respect of any Existing Shareholder only, any information relating to the affairs of any clients, supplier, agent, distributor or sub-contractor of any Group Company;
(a)in respect of any Existing Shareholder only, any documents, papers and property which may have been made or prepared by, or at the request of, any Group Company or which come into any Group Company’s possession or under any Group Company’s control in the course of the Business; and
(a)compilations of two or more items of such information referred to in (a) to (d) above and all information which has been, or may be, derived or obtained from any such information,
but excluding:
(a)any information which is or becomes publicly known (other than in either case as a result of a breach of the provisions of this Deed);
(a)save in the case of the information in limb (a) of the definition of Confidential Information, information a party can show was already known to it or was made known to it by a third party who was entitled to do so (and was not in breach of an obligation of confidence) and who did not impose an obligation of confidence or restricted use; or
(b)information required to be disclosed by any law or regulation applicable to any Shareholder or the Company;
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"Control"
(a)the power (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) to appoint and/or remove all or such members of the board of directors or other equivalent governing body of a person as are able to cast 50.00% or more of the votes capable of being cast by the members of that board or body on all, or substantially all, matters, or otherwise to control or have the power to control the policies and affairs of that person; or
(a)the holding and/or possession of the beneficial interest in and/or the ability to exercise or procure the exercise of the voting rights applicable to shares or other securities in any person (whether directly or by means of holding such interests in one or more other persons) which confer in aggregate on the holder thereof (directly or indirectly) 50.00% or more of the total voting rights exercisable at general meetings of that person on all, or substantially all, matters;
the term "Controlled" shall be construed accordingly;
“Covered Persons”
as defined in clause 13.2.14(g)(i);
"Deed"
this shareholders' agreement as modified, amended or replaced from time to time in accordance with the terms herein;
"Deed of Adherence"
a deed in the form (or substantially the form) set out in Schedule 2;
"Directors"
any director of the Company appointed in accordance with the terms of this Deed and the Articles and, where the context requires, shall also include an alternate of a Director, and "Director" means any one of them;
"Drag Along Documents"
as defined in clause 13.4.1(d)(v);
"Drag Along Option"
as defined in clause 13.4.1(a);
"Drag Along Sale"
as defined in clause 13.4.1(b);
“Effective Date”
as defined in clause 13.2.14;
“Effectiveness Period”
as defined in clause 13.2.14(c);
"Encumbrance"
any mortgage, charge (fixed or floating), pledge, lien, hypothecation, guarantee, trust, right of set off or other third party or interest (legal or equitable) including any assignment by way of security, reservation of title or other security interest of any kind, howsoever created or arising, or any other agreement or arrangement or obligation (including any conditional obligation) (including a sale and repurchase agreement) having similar effect;
“Exchange Act”
the US Securities Exchange Act of 1934, as amended;
"FCA"
the Financial Conduct Authority or any successor body;
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“Filing Date”
as defined in clause 13.2.14;
"Fund"
any unit trust, investment trust, limited partnership, general partnership or their collective investment scheme or body corporate or other entity in each case the assets of which are managed professionally for investment purposes, provided that references to Fund in Clause 11 shall be construed as references to the general partner or manager of the Fund;
"Funds at Lloyd's"
as defined in the Lloyd's Membership Byelaw (No 5 of 2005);
"Good Leaver"
any individual Shareholder holding Shares in a personal capacity who becomes a Leaver as a result of any of the following:
(a)death;
(b)permanent disability or permanent incapacity of such Shareholder (or the inability of such Shareholder to carry out their normal duties on an indefinite basis due to caring responsibilities for their spouse, civil partner, or child (including a stepchild) who has suffered a permanent disability or permanent incapacity);
(c)dismissal other than in circumstances justifying lawful summary dismissal (it being acknowledged that (i) circumstances that are determined by an employment tribunal or Court to constitute wrongful or unfair dismissal (other than wrongful dismissal that is solely on procedural grounds), or constructive dismissal, and (ii) redundancy as defined in the Employment Rights Act 1996, are not circumstances justifying lawful summary dismissal);
(d)resignation for Good Reason;
(e)(other than in respect of John Cavanagh, Tom Milligan, Paul Rayner and Tim Shelley), Bona Fide Retirement;
(f)in respect of John Cavanagh, Tom Milligan, Paul Rayner and Tim Shelley, the Agreed Retirement Circumstances; and
(g)any person who Cirrata agrees in writing should be treated as a 'Good Leaver';
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"Good Reason"
resignation of an employee, consultant or director for any of the following reasons:
(a)constructive dismissal;
(b)a material diminution in the job title, duties and/or responsibilities as in existence as of the date of this Deed (other than during any termination notice period (or equivalent) as provided in the contract of employment or engagement), without the individual’s written consent;
(c)a relocation of the individual’s place of work to a location more than 50 miles from the current location as at the date of this Deed, without the individual’s written consent;
(d)any other reason as approved in writing by Cirrata;
"Group"
the Company and any Subsidiary from time to time and "Group Company" means any one of them;
"Guaranteed Obligations"
all present and future obligations and liabilities of Cirrata under this Deed and, if required under clause 20.11, the obligations and liabilities of the Co-Guarantor under the Co-Guarantee;
“holding company”
as defined in clause 1.4;
“Immediate Relation”
in the case of an individual Shareholder, a:
(a)spouse;
(b)civil partner;
(c)child (including an adopted child); or
(d)a trust set up wholly for the benefit of either the relevant Shareholder and/or his other Immediate Relations as specified in paragraphs (a), (b) and (c) above,
of that individual Shareholder;
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"Intellectual Property"
patents and patent applications, utility models, rights to inventions (whether or not patentable), copyrights and copyrightable works and corresponding rights in works of authorship (whether or not published), trademarks and service marks, logos, trade names, corporate names and domain names, rights in get-up and trade dress, goodwill associated with any of the foregoing, rights in designs, data and database rights, know-how and trade secrets, and all other intellectual property and similar proprietary rights, including rights in software and other technology, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Leakage”
has the meaning given to this term in the Share Purchase Agreement as if (i) the Locked Box Accounts were the Company’s consolidated financial accounts for the Relevant Year and (ii) the “Locked Box Date” were 31 December of the Relevant Year;
“Leaver”
a Shareholder (i) whose employment, service or engagement with the Company, any Group Company, Ambac or any company in the Ambac Group terminates; or (ii) who gives or receives notice of termination of employment, service or engagement with the Company, any Group Company or any company in the Ambac group, and in both cases the Shareholder does not continue in employment, service or engagement with another Group Company or another Ambac Group company;
"Leaving Date"
a date on which an Outgoing Shareholder ceases to be a Shareholder under this Deed;
"Lloyd's"
the Society incorporated by Lloyd's Act 1871 by the name of Lloyd's;
"Loss of Control"
a transaction or series of transactions pursuant to which Cirrata (or any other members of the Ambac Group other than a Group Company) ceases to hold a majority of the voting rights in respect of shares then in issue (or the shares or other equity securities of Cirrata or any new holding company of Cirrata or the Company formed for the purpose of facilitating such transaction or transactions), but which does not result in a Change of Control;
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“Losses”
as defined in clause 13.2.14(g)(i);
"Management Shareholder"
the persons listed at Part B of Schedule 1 excluding BCC;
"Management Shareholders' Representative"
Paul Rayner;
"Manager"
any individual who is appointed to assume a key senior role in the Company and the running of the Business (whether as director, consultant or employee) or who is a senior employee of the Group or is designated as such by the Board;
“MGA”
an insurance managing general agent or managing general underwriter operating in London, Bermuda and/or the USA;
"MGA Agreement"
in respect of a Subsidiary, the shareholders' agreement in effect or to be entered into between the Company (or another Group Company), the Underwriters and such Subsidiary;
"MIP"
as defined in clause 8.1;
“Net Debt”
for a Relevant Year, means the consolidated financial indebtedness less cash and cash equivalents (excluding any amount required to be held as regulatory capital, cash held as security or any other restricted cash, including fiduciary balances and Cash Held for Working Capital Requirement) in each case of the Company or, in the context of Schedule 8, the relevant Subsidiary (it being acknowledged that such amount may be a positive or a negative number), as shown in the Company’s or, as the case may be, the Subsidiary's consolidated financial accounts for the Relevant Year increased by the amount of accrued liabilities on the balance sheet of the Company or the relevant Subsidiary for actual or expected dilapidations charges on properties;
"New Articles"
the amended articles of association to be adopted by the Company at Completion;
"Non-Hire Period"
as defined in clause 11.9.4;
"Non-Solicit Period"
as defined in clause 11.9.3;
"Option Exercise Date"
as defined in clause 13.2.1(b);
"Option Exercise Notice"
as defined in clause 13.2.1(c);
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"Option Exercise Period"
as defined in clause 13.2.1(d);
"Ordinary Shares"
the ordinary shares each in the capital of the Company;
"Outgoing Shareholder"
any person who ceases to be a Shareholder of the Company for any reason;
“Outstanding Shares”
the number of outstanding shares of common stock of Ambac as of the final day of the Trading Period as reported by the Transfer Agent;
"PRA"
the Prudential Regulation Authority or any successor body;
"Previous Shareholders' Agreement"
the shareholders' agreement relating to the Company dated 30 August 2020, as amended and restated on 11 November 2020, 10 May 2021 and 3 January 2023, and amended on 1 September 2023, as amended from time to time;
"Process Agent"
as defined in clause 38.1;
“Prohibited Transferee”
any person with whom any Shareholder is prohibited or restricted from doing business or from dealing whether by law or regulation;
"Proposed Buyer"
a bona fide arm's length third party purchaser on arm's length terms;
"Proposed Transfer"
as defined in clause 13.5.1;
"Put Option"
as defined in clause 13.2.2;
"Reference Date"
as defined in clause 11.9.5;
“Registrable Securities”
as defined in clause 13.2.14(a);
"Regulatory Authority"
the FCA, PRA and Lloyd's or any other competent governmental, statutory or regulatory authority having regulatory or supervisory authority or jurisdiction or control over a party in relation to the fulfilment of their obligations hereunder;
"Regulatory Extension"
with respect to any time period and applicable transaction, an extension of such time period until such time as any requisite or material regulatory, antitrust, governmental or contractual approval (from a third party that is not a party to such applicable transaction) is obtained, so long as the applicable parties are undertaking reasonable efforts to obtain such approval and such approval may reasonably be expected to be obtained; provided that such extension may not exceed a total aggregate period of six months from the relevant date that a binding agreement for the sale of Shares has been entered into, without the approval of the Board in respect of any matter that is not a mandatory and suspensory condition to completion of the relevant transfer;
"Relevant Party"
as defined in clause 38.1;
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"Relevant Shares"
as defined in clause 13.2.1(a);
"Remaining Shareholders"
as defined in clause 13.5.2(a);
"Required Consent"
has the meaning given in clause 5.1.2;
“Resale Registration Statement”
as defined in clause 13.2.14(a);
"Reserved Matters"
those matters as listed at Schedule 3;
"Restricted Period"
as defined in clause 11.9.2;
"Sale Completion Date"
as defined in clause 13.4.2(b);
“Scheme of Delegation”
a scheme for the delegation of any powers, authorities, rights or obligations of the Board to the Managers, as determined by the Board from time to time;
“Seller”
as defined in clause 13.2.14(a);
“SEC”
the United States Securities and Exchange Commission;
“Securities Act”
the US Securities Act of 1933, as amended;
"Senior Employee"
as defined in clause 11.9.6;
"Share"
any share in the capital of the Company of whatever class;
"Share Capital"
all of the issued Shares of the Company from time to time;
"Share Purchase Agreement"
as defined in paragraph (B) of the Background;
"Shareholders"
persons holding Shares in the Company from time to time;
"Subsidiary"
any subsidiary of the Company from time to time;
"Subsidiary MGA"
a Subsidiary that has received approval to act as a coverholder;
"Syndicate"
Syndicate No. 4242 at Lloyd's, Syndicate No. 1416 at Lloyd's and any other syndicate at Lloyd's agreed between the Shareholders to be included as a Syndicate in respect of the Business;
"Tag Along Documents"
as defined in clause 13.5.2(c)(iv);
"Tag Along Offer"
as defined in clause 13.5.2(a);
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"Tag Along Offer Notice"
as defined in clause 13.5.2(c);
"Tag Along Offer Sale Date"
as defined in clause 13.5.2(c);
“Tag Along Sale”
as defined in clause 13.5.2(e);
"Tagging Shares"
in respect of a Remaining Shareholder:
(a)on a proposed sale of Cirrata's Shares which would result in a Loss of Control but not a Change of Control, such number of Shares which represents the same proportion of Shares as Cirrata proposes to sell to the Proposed Buyer; and
(b)on a proposed sale of Cirrata's Shares which would result in a Change of Control, all of the Shares held by the Remaining Shareholder;
"Tax" or "Taxation"
all forms of taxation (other than deferred tax) and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions and levies, in each case in the nature of tax, whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or otherwise and shall further include payments to a Tax Authority on account of Taxation, whenever and wherever imposed and whether chargeable directly or primarily against or attributable directly or primarily to a Group Company or any other person and all penalties and interest relating thereto;
"Tax Authority"
any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation;
"Tax Benefit"
as defined in clause 13.2.16(d);
“Trading Period”
as defined in clause 13.2.9(b)(i);
“Transaction Documents”
the Share Purchase Agreement, the Tax Deed (as defined in the Share Purchase Agreement), the Disclosure Letter (as defined in the Share Purchase Agreement) and all documents entered into pursuant to the Share Purchase Agreement;
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"Transfer"
in relation to any share or any directly or indirectly held legal or beneficial interest in any share, to:
(a)sell, assign, transfer or otherwise dispose of such share or interest;
(b)create or permit to subsist any Encumbrance over such share or interest;
(c)direct (by way of renunciation or otherwise) that another person should, or assign any right to, receive such share or interest;
(d)enter into any agreement in respect of the votes or any other rights attached to such share other than by way of proxy for a particular shareholder meeting;
(e)enter into any sub participation, derivative arrangement or other transfer of beneficial ownership or economic interest of any kind in respect of such share or interest; or
(f)agree or grant an option, whether or not subject to any condition precedent or subsequent, to do any of the foregoing,
whether directly or indirectly, whether with or without consideration, conditionally or unconditionally and whether voluntarily or involuntarily or by operation of law, provided that (i) pledges or hypothecations in connection with borrowing transactions (provided that any realisation on such pledge or hypothecation must itself follow the Transfer restrictions herein), including any borrowing transaction entered into by the BCC Corporate Member for the provision of Funds at Lloyd's by a third party lender, and (ii) the creation of any Encumbrance over an interest in a Fund (provided that any realisation on any such Encumbrance must itself follow the Transfer restrictions herein), shall not be deemed to be a transfer or Transfer for any purpose under this Deed or the Articles. The terms "Transferring", "Transferred", "Transferor" and "Transferee" shall be construed accordingly;
“Transfer Agent”
Computershare Inc., 462 South 4th Street, Suite 1600, Louisville, KY 40202, in its capacity as the transfer agent of Ambac (or any successor);
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"Transfer Value"
means in relation to a transfer of Shares by a Called Shareholder (for the purposes of clause 13.4) or a Remaining Shareholder (for the purposes of clause 13.5), the portion of the total proceeds that the holder of such Shares would be entitled to receive in the event of an apportionment of proceeds following a sale of the Company (in accordance with clauses 13.4 and 13.5) on the assumption that the ‘total proceeds’ of sale for such purposes shall be the value of the Company that is implicit in the price that is offered by the purchaser;
"Underwriter"
an underwriter or underwriters or any other natural person other than the Company who acquires shares in a Subsidiary;
"Unexercised Call Options"
as defined in clause 13.2.1(e);
"Unexercised Put Options"
as defined in clause 13.2.1(f);
"Voting Rights"
the voting rights attaching to all issued Shares from time to time;
"Working Capital"
the Net Assets of the Group excluding:
a.certain assets being intangible assets, fixed assets, and assets included within the calculation of Net Debt; and
b.certain creditors being creditors related to the Syndicates’ funding of fixed assets and creditors included within the calculation of Net Debt;
"Working Capital Adjustment"
the difference between the Working Capital at 31 December of the Relevant Year and the average Working Capital for the 12 months from the 31 December of the year preceding the Relevant Year to 31 December of the Relevant Year; and
"Year of Account"
means a Lloyd's underwriting year of account.
1.2Singular, plural, gender
References to one gender include all genders and references to the singular include the plural and vice versa.
1.3References to persons and companies
References to:
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1.3.1a "person" include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (whether or not having separate legal personality); and
1.3.2a "company" include any company, corporation or body corporate, wherever incorporated.
1.4References to subsidiaries and holding companies
A company is a "subsidiary" of another company (its “holding company”) if that other company, directly or indirectly, through one or more subsidiaries:
1.4.1holds a majority of the voting rights in it;
1.4.2is a member or shareholder of it and has the right to appoint or remove a majority of its board of directors or equivalent managing body;
1.4.3is a member or shareholder of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or
1.4.4has the right to exercise a dominant influence over it, for example by having the right to give directions with respect to its operating and financial policies, with which directions its directors are obliged to comply.
1.5Meaning of "material"
In this Deed, "material" shall be construed, as applicable, to mean material to the relevant person, material to the relevant contract, agreement or obligation or material to the relevant issue or event.
1.6Headings
Headings do not affect the interpretation of this Deed.
1.7Schedules, etc.
References to this Deed shall include any Recitals and Schedules to it and references to clauses and Schedules are to clauses of, and Schedules to, this Deed. References to paragraphs and Parts are to paragraphs and Parts of the Schedules.
1.8Reference to documents
References to any document (including this Deed), or to a provision in a document, shall be construed as a reference to such document or provision as amended, supplemented, modified, restated or novated from time to time.
1.9Information
References to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm.
1.10Currencies, exchange rates
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1.10.1References to sterling or pounds sterling or £ are references to the lawful currency from time to time of the United Kingdom.
1.10.2References to dollars or USD or $ are references to the lawful currency from time to time of the United States of America.
1.10.3For the purposes of applying a reference to a monetary sum expressed in sterling, except as otherwise provided for in this Deed, an amount in a different currency shall be deemed (a) in respect of amounts payable pursuant to clauses 13.2 and 15 to be an amount in sterling translated at the exchange rate at the date that Cirrata (or, in the case of a Put Option, the relevant Existing Shareholder) exercises its rights under the relevant clause or (b) to be an amount in sterling translated at the exchange rate at the date of the time of the relevant payment was, or should have, been made under the terms of this Deed or, if the reference to a monetary sum does not relate to a payment, the date of this Deed (or, if the date of the relevant payment or this Deed (as applicable) is not a Business Day, then the first Business Day immediately following such date). For the purposes of this clause 1.10.3, "exchange rate" means, with respect to a particular currency, the spot rate of exchange (the closing mid-point) for that currency into sterling on such date as published in the London edition of the Financial Times, or if not published on such date, first published thereafter or, where no such rate is published in respect of that currency for such date, at the rate quoted by Barclays Bank as at the close of business in London as at such date.
1.11Legal terms and enactments
1.11.1References to any English legal term shall, in respect of any jurisdiction other than England and Wales, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.
1.11.2Except as otherwise expressly provided in this Deed, any express reference to an enactment (which includes any legislation in any jurisdiction) includes references to:
(a)that enactment as amended, consolidated or re-enacted by or under any other enactment before or after the date of this Deed;
(b)any enactment which that enactment re-enacts (with or without modification); and
(c)any subordinate legislation (including regulations) made (before or after the date of this Deed) under that enactment, as amended, consolidated or re-enacted as described at 1.11.2 or (a) above.
1.12Non-limiting effect of words
The words "including", "include", "in particular" and words of similar effect shall not be deemed to limit the general effect of the words that precede them.
1.13Meaning of "to the extent that" and similar expressions
In this Deed, "to the extent that" shall mean "to the extent that" and not solely "if", and similar expressions shall be construed in the same way.
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1.14Inconsistencies
Where there is any inconsistency between the definitions set out in this clause 1 and the definitions set out in any other clause or any Schedule then for the purposes of construing such clause or Schedule the definitions set out in such clause or Schedule shall prevail.
1.15Percentages
In this Deed, all percentages (%) in respect of Outstanding Shares shall be determined on a fully diluted basis.
2.Termination of Previous Shareholders' Agreement
2.1It is acknowledged that on Completion the Previous Shareholders' Agreement automatically ceased to be of effect with regard to the Existing Shareholders and all rights and obligations thereunder terminated (other than with respect to clauses 4.6 to 4.13 of the Previous Shareholders' Agreement and which are set out in Schedule 6, which shall survive such termination and remain enforceable) and that, with effect from Completion, each of the Existing Shareholders and the Company irrevocably and unconditionally waived any claims they may have pursuant to the Previous Shareholders' Agreement. For the avoidance of doubt, nothing in this clause 2 terminates the liabilities of Colemont UK Holdings Limited and Paraline Group, Ltd under the Previous Shareholders’ Agreement for any prior breach and for any provisions that are stated to survive termination, it being acknowledged that such matters are dealt with under the terms of the deed of termination of the Previous Shareholder's Agreement.
3.The Business of the Company
3.1Scope of the Business and future growth
3.1.1The Company at its sole expense shall use all reasonable and proper means to maintain, improve, grow and extend the scope of the Business in accordance with the Business Plan.
3.1.2Subject to the provisions of clause 5, and notwithstanding any provision (other than clause 5) in this Deed, the Company shall be free at any time to pursue other insurance ventures, including by way of example, establishing Lloyd's managing agents and/or Lloyd's syndicates and/or Lloyd's special purpose arrangements, insurance linked security arrangements and/or insurance service providers as approved by the Board.
3.2Conduct of the Business
3.2.1The Shareholders agree that their respective rights and obligations in relation to the Company shall be regulated by this Deed and the Articles. Each of the Shareholders and the Company (so far as it lawfully can) agrees to be bound by and comply with the provisions of this Deed which relate to them and all provisions of the Articles will be enforceable by the parties between themselves in whatever capacity.
3.2.2The Shareholders shall:
(a)procure, so far as reasonably practicable and within their power, that any Manager and/or any other persons approved by the Board to provide services to the Company or a
20

Subsidiary are suitably employed and made available to the Company on terms approved by the Board;
(b)procure, so far as reasonably practicable and within their power, that the practice as at 31 December 2023 with respect to the charging of intra group fees will not change without Board approval;
(c)(so far as they lawfully can, and in the case of each Shareholder, so far as within its power), ensure that the Company and each of the Subsidiaries performs and complies with all of its obligations under this Deed and the Articles; and
(d)ensure (in the case of each Shareholder, so far as within its power) that the Business is conducted in the best interests of the Company and each of the Subsidiaries, in accordance with the general principles of the Business Plan, in accordance with the Budget and in accordance with sound and good business practice/standard industry practice and sound ethical standards.
3.3Company's strategic position within the Ambac Group
For so long as Cirrata and/or any member of the Ambac Group is the majority shareholder of the Company:
3.3.1Cirrata and Ambac shall each procure that the Group will operate as a distinct unit within the Ambac Group with a global mandate for all new managing general agent and/or managing general underwriter launches. In respect of such new platforms, Cirrata and Ambac undertake to the other parties that the Company shall have a right of first refusal prior to any such new platform being launched within another part of the Ambac Group.
3.3.2Cirrata, Ambac and the Existing Shareholders, so far as within their respective powers, shall each procure that the Company and the Group will cooperate with Cirrata, Everspan and 220 business units and the wider Ambac Group to create value through mutual support on new initiatives, synergy realisation, capital access, shared services and other areas as may be mutually, and reasonably, agreed from time to time.
4.The Board
4.1Management of the Company
4.1.1The Board shall be responsible for the overall direction, supervision and management of the Company.
4.1.2The Shareholders shall procure, so far as within their power:
(a)subject to clause 4.1.2(d), the powers and authority of the Board shall be delegated to the Executive Directors, who shall have responsibility for the day-to-day management of the Company's affairs as set out in the Scheme of Delegation;
(b)subject to clause 4.1.2(d), the powers and authority of the Board may be delegated to any other Manager (as may be
21

appointed from time to time) with responsibility for the day-to-day management of any matters relating to the Business;
(c)Directors appointed by BCC shall be entitled to a meeting with executives, either prior to or after any Board meeting; and
(d)notwithstanding anything to the contrary in this Deed, no Manager or Executive Director shall take any decision in relation to any Board Matter without such Board Matter having first been approved by the Board, provided that (i) Schedule 4 may be amended by a decision of the Board at any time that will be notified to the Shareholders in advance and in respect of which the Directors appointed by the Shareholders will be permitted to make representations, and, (ii) nothing herein shall limit the ability of the Board to amend the Scheme of Delegation at any time without notice (it being understood that no such amendment described in either (i) or (ii) requires any further consent of the Shareholders).
4.2Directors
4.2.1From Completion, the Board shall consist of nine Directors, to be appointed in accordance with the provisions of this clause 4.2. In no event shall the Board consist of more than ten Directors, all such Directors to be appointed in accordance with the provisions of this clause 4.2.
4.2.2From Completion, the following Shareholders shall have the following board appointment rights:
(a)for so long as Cirrata (or another member of the Ambac Group) holds Shares, at least five Directors (and in no event less than half of the Directors) appointed by Cirrata, with the initial such Directors being Claude LeBlanc, R. Sharon Smith, David Trick, Naveen Anand and such fifth person that Cirrata determines;
(b)for so long as BCC holds (i) at least 5.11% of the Shares, two Directors appointed by BCC and (ii) less than 5.11% of the Shares and is a Shareholder, one Director appointed by BCC. The initial such directors appointed by BCC on the date of this Deed being Matt Cannan and Elena Lieskovska;
(c)for so long as the Management Shareholders (together) hold (i) at least 4.90% of the Shares, two Directors appointed by a majority (by number of Voting Rights in Shares) of the Management Shareholders and (ii) less than 4.90% of the Shares and there is at least one Management Shareholder, one Director appointed by a majority (by number of Voting Rights in Shares) of the Management Shareholders. Such Director(s) shall be appointed by a majority (by number of Voting Rights in Shares) of the Management Shareholders. The initial such Directors appointed by the Management Shareholders on the date of this Deed being John Cavanagh and Tom Milligan; and
(d)all remaining Directors as are appointed by the Board from time to time in accordance with clause 4.2.5.
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4.2.3If a Shareholder ceases to have the right to act as, or appoint, a Director, such appointment shall automatically be terminated and such Shareholder and its Associated Companies (to the extent applicable) shall do all such things and sign all such documents as may otherwise be necessary in connection with such termination.
4.2.4Any requirement contained in this Deed or the Articles for a certain number of Directors to be present at a Board meeting to constitute a quorum shall be met without the attendance or presence of a Director whose appointment has automatically terminated pursuant to clause 4.2.3 notwithstanding that a particular number or certain type of Director is normally required in order to constitute a quorum.
4.2.5The Directors may, subject to clause 4.2.1 and clause 5, appoint such other person to the Board as the Directors may approve from time to time.
4.2.6No director of the Company or any Group Company will receive any remuneration qua director from the Company or any other Group Company.
4.3Removal of Directors
4.3.1A Shareholder may remove a Director appointed by it at any time by giving written notice to the Company. The removal shall take effect when the notice is deemed delivered to the Company or on such later date (if any) specified in the notice. Upon such a Director being removed from his/her position as a Director of the Company, the Shareholder that removed such Director shall be entitled, subject to this Deed and to the Articles and by written notice to the Company, to appoint another Director or act as Director (if appropriate) in his/her place.
4.3.2No Shareholder shall have the right to object to the removal of a Director by any other Shareholder made in accordance with this clause 4 and the Articles.
4.3.3If a Director ceases to be qualified under the Articles to act as a Director of the Company then the Shareholder that appointed that Director shall procure that the relevant Director is removed as a Director of the Company and it shall then be entitled to replace any such appointee in accordance with this Deed and the Articles.
4.3.4The Board may, by ordinary resolution of the Board and subject to the provisions of clause 5, remove any Director (if any) appointed pursuant to clause 4.2.5. For the purposes of this clause 4.3.4, any Director appointed pursuant to clause 4.2.5 shall not be permitted to count in a quorum at a Board meeting or vote (at a Board meeting or by way of written resolution) on any resolution relating to his removal.
4.4Removal of Director indemnity
A Shareholder whose appointee has been:
4.4.1removed as a Director by it; or
4.4.2removed as a Director pursuant to this Deed, including pursuant to clause 14.5.1; or
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4.4.3whose appointee has resigned as a Director,
shall be responsible for and indemnify each of the other Shareholders and the Company fully in respect of any losses, liabilities and costs which each of the Shareholders and/or the Company may incur arising out of or in connection with any claim by the relevant appointee Director for wrongful or unfair dismissal or redundancy or other similar compensation arising out of such removal or resignation.
4.5Appointments of Directors
4.5.1Subject to clause 4.2.1, a Shareholder entitled to appoint a Director in accordance with clause 4.2 shall, in order to appoint a Director, give written notice to the Company. The appointment shall take effect when the notice is deemed delivered to the Company or on such later date (if any) as is specified in the notice.
4.5.2No Shareholder shall have the right to object to the appointment of a Director by any other Shareholder made in accordance with this clause 4.5 and the remaining provisions of this Deed and the Articles.
4.6Alternates
Each Shareholder may appoint one alternate director for each Director appointed by it in accordance with the Articles.
4.7Chairman
Cirrata may nominate one of its appointees as a Director to act as Chairman.
4.8Director remuneration
Any Director who incurs expenses in fulfilling his/her duties as a Director shall be entitled to have such reasonable and properly incurred expenses reimbursed by the Company. Otherwise the Directors shall not be entitled to receive any remuneration by way of salary, commission, fees or otherwise exclusively in relation to the performance of their duties as Directors.
4.9Committees
Any committee of the Board shall be constituted so as to reflect, as closely as possible, the Board appointment rights set out in clause 4.2.2. It is acknowledged that Cirrata shall have the right to appoint a chair of the relevant committee and that such chair shall have a casting vote in the event of an equality of votes save where such equality of votes relates to or concerns a Reserved Matter.
4.10Board Meetings
4.10.1Subject to this Deed and the Articles, the Shareholders agree that the Directors may participate in Board meetings for the despatch of business, adjourn and otherwise regulate their meetings as they think fit.
4.10.2The Board shall meet at least quarterly and at any greater frequency requested by the Chairman or any two Directors.
4.10.3Each Board meeting shall be fully minuted.
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4.10.4A company secretary (or, if none is appointed, a Director) shall arrange for draft minutes to be prepared which shall record the proceedings and resolutions of all Board meetings and which shall be circulated to each Director for review, amendment (if required) and approval.
4.10.5The minutes of a meeting shall be confirmed by the Board as a correct record at the next following Board meeting. Once approved by the Board the minutes shall be signed by the Chairman and regarded as conclusive evidence of the decisions of the Board and a final copy shall be circulated by a company secretary (or, if none is appointed, a Director) to all members of the Board.
4.10.6At least ten Business Days' notice shall be given to each of the Directors of all Board meetings, except where a Board meeting is adjourned under clause 4.10.10 and/or 4.10.11 or the majority of Directors agree to a shorter notice period and all the Directors are notified of the shorter notice period.
4.10.7Board meetings shall be held at any location as all the Directors agree (and Board meetings may take place by telephone, video conference or any such similar medium).
4.10.8Unless all of the Directors agree otherwise, each notice of a Board meeting must be accompanied by:
(a)an agenda specifying in reasonable detail the matters to be raised at the meeting; and
(b)copies of any relevant papers to be discussed at the meeting.
4.10.9Matters not on the agenda or business conducted in relation to those matters may not be raised at a Board meeting unless the Chairman agrees otherwise.
4.10.10The quorum at a Board meeting (including an adjourned Board meeting) shall require the attendance of (a) at least two Directors appointed by Cirrata; (b) at least one Director appointed by the Management Shareholders; and (c) at least one Director appointed by BCC. If a quorum is not present within half an hour of the time appointed for the meeting or ceases to be present, the Director(s) present shall adjourn the Board meeting to a specified place and time not less than five Business Days after the original date. Notice of the adjourned Board meeting shall be given to the Directors. If the quorum at such adjourned Board meeting is not present within half an hour from the time appointed for resumption of the meeting, then notwithstanding the provisions of this clause 4.10.10, the meeting shall be deemed quorate so long as at least two Directors appointed as Cirrata are present (and in any event as many Directors appointed by Cirrata are present as all other Directors present). Each party undertakes to ensure that any Director appointed by it does not avoid attendance at a Board meeting for the purposes of frustrating satisfaction of the quorum requirements.
4.10.11A meeting of Directors shall be adjourned to another time or date at the request of all the Directors present at the meeting in accordance with the Articles. No business may be conducted at a meeting after such a request has been made and accepted by all the Directors.
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4.10.12Subject to the other provisions of this Deed, at any Board meeting each Director shall have one vote and decisions at Board meetings shall be taken by a simple majority of the votes, so long as at least one Cirrata appointed Director has voted or decided in favour. In the event of an equality of votes, the Chairman shall have a casting vote.
4.10.13Each Shareholder shall use all its reasonable endeavours to ensure that each Director appointed by it attends each Board meeting.
5.Reserved Matters
5.1Reserved Matters
5.1.1The Company shall procure and the Shareholders shall procure so far as within their powers (whether as a Shareholder, director or employee of a Group Company or otherwise), that no action is taken or resolution passed by any Group Company in respect of any of the Reserved Matters, without the relevant consent required in accordance with the remainder of this clause 5 being obtained.
5.1.2In this Deed, "Required Consent" means:
(a)in respect of the matters set out at paragraphs 1-3 and 6-8 of Schedule 3, the prior written consent of BCC (for so long as it remains a Shareholder) and a majority (by number of voting Shares held) of the Management Shareholders (for so long as there are Management Shareholders);
(b)in respect of the matters set out at paragraphs 4 and 5 of Schedule 3, the prior written consent of BCC (for so long as it holds at least 10% of the issued ordinary share capital of the Company) and a majority (by number of voting Shares held) of the Management Shareholders (for so long as the Management Shareholders collectively hold at least 10% of the issued ordinary share capital of the Company).
5.1.3If a Management Shareholder or any of its Associated Companies or Immediate Relations to whom the relevant Management Shareholder has Transferred Shares conducts a Competing Activity, such Management Shareholder’s consent shall no longer be required for any of the Reserved Matters set out in paragraphs 4 and 5 of Schedule 3 unless the Management Shareholder, its Associated Companies or Immediate Relations (as the case may be) cease conducting such Competing Activity within one month of becoming aware it conducts a Competing Activity. This clause 5.1.3 shall also apply to BCC or any of its Associated Companies to whom BCC has Transferred Shares if BCC, or the relevant Associated Company, has (i) breached its obligations under clause 18 by disclosing directly or indirectly Competitive Information to a Competitor which has caused or may reasonably be expected to cause material detriment to the commercial interests of the Group, or (ii) knowingly used Competitive Information for the benefit of a Competitor which has caused or may reasonably be expected to cause material detriment to the commercial interests of the Group.
5.2Related transactions
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A series of related transactions shall be construed as a single transaction, and any amounts involved in the related transactions shall be aggregated, to determine whether a matter is a Reserved Matter.
6.Budgets and financial information
6.1The Company shall prepare, or procure the preparation of, for approval by the Board, the following information no later than the date and times set out below (or such other dates and times as the Board may decide from time to time):
6.1.1the unaudited results of the Company for the previous financial year, at the first Board meeting following the end of each financial year (being the Accounting Reference Date);
6.1.2the audited accounts or audited consolidated returns of the Company for the previous financial year as soon as reasonably practicable after they are available and, in any event, no later than the Board meeting immediately prior to the date by which those accounts are due to be filed with UK Companies House;
6.1.3an updated draft three-year Budget for the Company before the end of each financial year (including estimated major items of revenue and capital expenditure). The Budget shall be broken down on a quarterly basis, and shall contain a cash flow forecast and an income statement for the following financial year;
6.1.4any updated Business Plan required by the Board, from time to time;
6.1.5a report in respect of each financial year, on the Company’s implementation of its procedures designed to prevent any Associated Person from undertaking any conduct that would give rise to an offence by the Company under section 7(1) of the Bribery Act 2010 and the Company's compliance with and monitoring of such procedures, such report to be provided within 25 Business Days of the end of each financial year; and
6.1.6such further information as the Board may reasonably require relating to the Business or financial condition of the Company.
6.2The Board shall determine what if any amendments to the Budget and the updated Business Plan are required and, subject to these amendments being made, the draft Budget and draft Business Plan shall then be approved.
6.3Once approved:
(a)the Board shall sign the annual accounts of the Company and file them with the Registrar of Companies; and
(b)the Company's annual accounts shall be distributed to all Shareholders,
as required by the Companies Act 2006.
6.4Each of Cirrata, BCC (for so long as it holds Shares representing at least 5% of the issued ordinary share capital of the Company) and the Management Shareholders (for so long as the Management Shareholders together hold Shares representing at least 5% of the issued ordinary share capital of the Company) shall be entitled to receive (subject to clause 6.6) the following information from the Company and the Company and each Shareholder shall,
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so far as within their power, procure that such information is provided within the timeframes set out below (or where information is provided on request, within a reasonable timeframe):
6.4.1Lloyd's quarterly QMA and QMB returns for the Syndicate, at any time on request from a Shareholder to the Company;
6.4.2audited accounts of the Company and of any Subsidiary, as soon as reasonably practicable following, and in any event, within three months of, the end of the financial year to which they relate;
6.4.3unaudited quarterly financial statements of the Company and of any Subsidiary, as soon as reasonably practicable following, and in any event, within 20 days of the end of the period to which they relate;
6.4.4quarterly management accounts, including relevant operational and financial key performance indicators, as soon as reasonably practicable following, and in any event, within 20 days of the end of the period to which they relate;
6.4.5the current Budget, at any time on request from a Shareholder to the Company; and
6.4.6any other information reasonably required by such person in order to comply with its legal, Tax, regulatory or internal filing and reporting obligations, at any time on request from a Shareholder to the Company, provided such information shall be prepared and shared at such Shareholder’s sole costs and expense.
6.5Each Existing Shareholder, for so long as it holds Shares, shall be entitled to receive (a) notification of a dividend being declared by the Company within five Business Days of such declaration; and (b) the annual consolidated financial statements of the Company and the notes to such financial statements, in each case within five Business Days of their being finalised.
6.6If a Management Shareholder or any of its Associated Companies or Immediate Relations to whom the relevant Management Shareholder has Transferred Shares conducts a Competing Activity, such Management Shareholder shall cease to be entitled to the information set out in clause 6.4 unless the Management Shareholder, its Associated Companies or Immediate Relations (as the case may be) cease conducting such Competing Activity within one month of becoming aware it conducts a Competing Activity. BCC or any of its Associated Companies to whom BCC has Transferred Shares shall cease to be entitled to receive any Competitive Information pursuant to clauses 6.4.1 to 6.4.5 (inclusive) if BCC, or the relevant Associated Company, has (i) breached its obligations under clause 18 by disclosing Competitive Information to a Competitor which has caused or may reasonably be expected to cause material detriment to the commercial interests of the Group or (ii) knowingly used Competitive Information for the benefit of a Competitor which has caused or may be reasonably expected to cause material detriment to the commercial interests of the Group, provided always that BCC or any of its Associated Companies to whom BCC has Transferred Shares shall remain entitled to receive the information set out in clause 6.4.4 with any Competitive Information contained therein being redacted by the Company.
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7.Underwriting franchise management
7.1Subject to clause 7.3, the parties agree that they will work together to formalise and implement a partial liquidity structure for the management shareholders of the Subsidiaries as at the date of this Deed incorporating the terms set out in Schedule 8.
7.2In respect of any Subsidiary created or acquired after the date of this Deed, Cirrata shall (in consultation with the Management Shareholders) establish an appropriate liquidity structure for the management of such Subsidiaries at the time of creation or acquisition.
7.3If the management of such Subsidiaries accepts the terms of the relevant liquidity structure, they will be documented in a separate agreement between the relevant parties, provided that the Company may, at the Board’s discretion, require as a condition to such offer, amendments to the existing contractual arrangements between the Company and such Subsidiaries and the employment agreements of shareholder employees of the relevant Subsidiaries.
8.Management incentive plan
8.1To the extent not agreed prior to the date of this Deed, as soon as reasonably practicable after the date of this Deed, the parties shall acting reasonably agree a management incentive plan incorporating the terms set out in Schedule 7 and such other terms as the parties may, acting reasonably, agree (“MIP”). The MIP shall be set aside as “sweet equity” in the form of growth shares to be used for management incentives to incentivise the current and future management team of the Group (excluding, for these purposes, John Cavanagh, Tom Milligan, Paul Rayner and Tim Shelley), in accordance with allocations determined by the Board.
9.Special long-term incentive plan
9.1For so long as Cirrata holds a majority of the voting rights in the Company, if the Company pays dividends to the Management Shareholders, each Management Shareholder may elect to direct that certain of his or her gross dividends be used to invest in Ambac's long-term incentive plan.
9.2The ultimate terms upon which the Management Shareholders may exercise their rights under clause 9.1 of this Deed shall be agreed in a separate long-term incentive plan between the relevant parties.
10.Company property and Intellectual Property
10.1From and after Completion, each Shareholder, each Associated Company of such Shareholder, and each Group Company shall retain all rights, title and interest in and to its respective Intellectual Property, whether owned or otherwise held by such party. Except as may be set out in any MGA Agreement entered into by the Company no right or license in, to or under any party’s Intellectual Property, express or implied, is granted under this Deed.
11.Shareholder restrictions
11.1Each Restricted Shareholder severally undertakes to the Company and each other Shareholder that, during the Restricted Period, such Restricted Shareholder shall not conduct a Competing Activity, provided that if the Restricted Shareholder did not receive any relevant Confidential Information,
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and/or participate in the relevant Competing Activity as part of his or her work for the Group, then he or she shall not be deemed in breach of this covenant.
11.2Each Existing Shareholder (other than BCC) severally undertakes to the Company and each other Shareholder that during the Non-Solicit Period, such Existing Shareholder shall not solicit or seek to employ or entice away, or endeavour to solicit or entice away, from the Company and/or any Subsidiary any person who is employed or engaged by any Group Company and who either holds shares in a Group Company or has a base salary of no less than £100,000 per annum (or the equivalent in other currency), whether or not such person would commit any breach of his/her contract of service in leaving such employment.
11.3BCC undertakes to the Company and each other Shareholder that, during the Non-Solicit Period:
11.3.1it shall not and shall procure that any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP or any subsidiary undertaking of such Funds (excluding any portfolio companies) shall not, solicit or seek to employ or entice away, or endeavour to solicit or entice away, from the Company and/or any Subsidiary any person who is employed or engaged by any Group Company and who either holds shares in a Group Company or has a base salary of no less than £100,000 per annum (or the equivalent in other currency), whether or not such person would commit any breach of his/her contract of service in leaving such employment; and
11.3.2it shall not (whether directly or indirectly) direct or encourage any portfolio company of any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP to solicit or seek to employ or entice away, or endeavour to solicit or entice away, from the Company and/or any Subsidiary any person who is employed or engaged by any Group Company and who either holds shares in a Group Company or has a base salary of no less than £100,000 per annum (or the equivalent in other currency), whether or not such person would commit any breach of his/her contract of service in leaving such employment.
11.4BCC undertakes to the Company and each other Shareholder that, during the Non-Hire Period:
11.4.1it shall not and shall procure that any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP or any subsidiary undertaking of such Funds (excluding any portfolio companies) shall not knowingly, hire, employ or engage any of the Partners of the Company as at the date of this Deed (or others with equivalent seniority from time to time) or any CEO of a Group Company whilst any of them is employed by any Group Company or any employee of (i) the Company holding more than 1% of the fully diluted equity of the Company; or (ii) any Group Company holding more than 5% of the fully diluted equity of that Group Company, whether or not any such person would commit any breach of their contract of service in leaving such employment; and
11.4.2it shall not (whether directly or indirectly) direct or encourage any portfolio company of any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP to hire, employ or engage any of the Partners of the Company as at the date of this Deed
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(or others with equivalent seniority from time to time) or any CEO of a Group Company whilst any of them is employed by any Group Company or any employee of (i) the Company holding more than 1% of the fully diluted equity of the Company; or (ii) any employee of any Group Company holding more than 5% of the fully diluted equity of that Group Company, whether or not such person would commit any breach of their contract of service in leaving such employment.
11.5BCC shall not and shall procure that any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP or any subsidiary undertaking of such Funds (excluding any portfolio companies) shall not during the period beginning on the date of this Deed and ending on the third anniversary of the Reference Date, knowingly hire, employ or engage any Senior Employee knowing such Senior Employee would be in breach of their applicable non-compete undertakings to the Group.
11.6Nothing contained in clause 11.1 shall prevent:
11.6.1any Restricted Shareholder from being the holder or beneficial owner, by way of bona fide personal investment, of any class of securities in any listed company and not in excess of 5% of the issued share capital of such listed company;
11.6.2John Cavanagh from acting as a director of Nameco (No. 1068) Limited, Hampden Capital plc or Slipcase, or from holding any equity interests in (i) Nameco (No. 1068) Limited, provided that it participates on no more than 5% of the syndicate premium limit of any individual Lloyd's syndicate (other than the Syndicate), or (ii) Cadenza Holdings Limited;
11.6.3Tom Milligan from acting as a director of Nameco (No. 1329) Limited or from holding any equity interests in (i) Nameco (No. 1329) Limited, provided that it participates on no more than 5% of the syndicate premium limit of any individual Lloyd's syndicate (other than the Syndicate), or (ii) Cadenza Holdings Limited;
11.6.4Paul Rayner from acting as a director of Cadenza Holdings Limited, Cadenza Reinsurance Limited or Nameco (No 1352) Limited or from holding any equity interests in (i) Nameco (No 1352) Limited, provided that it participates on no more than 5% of the syndicate premium limit of any individual Lloyd's syndicate (other than the Syndicate), or (ii) Cadenza Holdings Limited; or
11.6.5Shradha Rughani or Rob McLendon from holding any equity interests in Cadenza Holdings Limited.
11.7The placing of an advertisement of a post generally available to members of the public, recruitment of a person through an employment agency where such advertisement or recruitment is not directed at employees or officers of the Group and the employment of any person (other than those in clause 11.4.) as a result of such an advertisement or recruitment shall not constitute a breach of clauses 11.2 or 11.3, provided that such Shareholder has not, or, in the case of any Shareholder which is a body corporate, any Associated Companies of that Shareholder have not encouraged or advised such agency to approach any such person.
11.8The parties confirm that they consider the restrictions contained in this clause 11 to be reasonable in all respects and necessary for the protection of
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the interest of the Shareholders and the Company, but if any of the restrictions is held to be invalid or ineffective, but would be valid and effective if some part of it were deleted, or some modification were made to its terms, then the restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.
11.9In this clause 11:
11.9.1"Restricted Shareholder" means John Cavanagh, Tom Milligan, Paul Rayner, Tim Shelley, Shradha Rughani, Ian Harman, Nicola Burke, Heather Marsden, Jason Coombe and Rob McLendon, and any Transferee in accordance with the terms of this Deed.
11.9.2"Restricted Period" means:
(a)in respect of John Cavanagh, Tom Milligan, Paul Rayner and Tim Shelley:
(i)where such person is a Good Leaver other than within limb (f) of the definition of Good Leaver, the period beginning on the date of this Deed and ending on the earlier of (A) the first anniversary of the Reference Date and (B) the first anniversary of the date such person became a Good Leaver;
(ii)where such person is a Good Leaver within limb (f) of the definition of Good Leaver or is a Bad Leaver, the period beginning on the date of this Deed and ending on the later of (A) the first anniversary of the Reference Date or (if later) 31 March 2029 and (B) the first anniversary of the date such person became a Leaver;
(b)in respect of Shradha Rughani, Ian Harman and Nicola Burke:
(i)where such person is a Good Leaver other than within limb (e) of the definition of Good Leaver, the period beginning on the date of this Deed and ending on the earlier of (A) the first anniversary of the Reference Date, (B) the first anniversary of the date such person became a Good Leaver and (C) three years following the date of Completion;
(ii)where such person is a Good Leaver within limb (e) of the definition of Good Leaver, the period beginning on the date of this Deed and ending on the later of (A) the first anniversary of the Reference Date or (if later) 31 March 2029 and (B) the first anniversary of the date such person became a Leaver;
(iii)where such person is a Bad Leaver, the period beginning on the date of this Deed and ending on the later of (A) the first anniversary of the Reference Date or (if earlier) 31 March 2027 and (B) the first anniversary of the date such person became a Leaver;
(c)in respect of Heather Marsden, Jason Coombe and Rob McLendon:
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(i)where such person is a Good Leaver, the period beginning on the date of this Deed and ending on the earlier of (A) the first anniversary of the Reference Date, (B) the first anniversary of the date such person became a Good Leaver and (C) two years following the date of Completion;
(ii)where such person is a Bad Leaver, the period beginning on the date of this Deed and ending on the later of (A) the first anniversary of the Reference Date or (if earlier) 31 March 2026 and (B) the first anniversary of the date such person became a Leaver;
11.9.3"Non-Solicit Period" means:
(a)in respect of BCC, the period beginning on the date of this Deed and ending on the first anniversary of the Reference Date; and
(b)in respect of any other Existing Shareholder, the period beginning on the date of this Deed and ending on the later of (i) the third anniversary of the Reference Date, (ii) the third anniversary of the date such person became a Leaver, and (iii) three years from the date of Completion;
11.9.4“Non-Hire Period” means the period beginning on the date of this Deed and ending on the first anniversary of the Reference Date.
11.9.5"Reference Date" means the date the relevant Restricted Shareholder or Existing Shareholder (as applicable), together with their Associated Companies or Immediate Relations, ceased to hold any Shares.
11.9.6“Senior Employee” means each of the Management Sellers (as such term is defined in the Share Purchase Agreement) and any other employee of the Group Companies, including any persons engaged as directors, workers, consultants or secondees by any Group Company: (i) with a gross base salary of more than £175,000 per annum (or the equivalent in other currency); (ii) that is a chief executive officer of any Group Company or (iii) with equity interests greater than 2.5% of the fully diluted share capital in a Group Company.
12.Insurance
12.1The Company shall at its own expense take out and maintain insurance policies (for the benefit of the Shareholders as appropriate) in such amounts as the Board may from time to time determine as being required or appropriate, including a directors' and officers' liability insurance (together with run off cover).
12.2The Shareholders (where relevant) shall co-operate with the Company in obtaining the insurance policies in clause 12.1 and undergo any medical examination regarded as reasonably necessary for the procurement of any such insurance policy.
13.Transfers of Shares
13.1General Prohibition
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13.1.1Other than pursuant to clauses 13.1.3, 13.2 or 15, no Existing Shareholder shall Transfer all or any part of their interest in the Company, or agree to do so, without the prior written consent of Cirrata. For the avoidance of doubt, Cirrata shall not require any prior written consent of the Existing Shareholders to Transfer its Shares.
13.1.2Each Existing Shareholder and Cirrata undertakes to the other parties that for so long as there are any Put Options or Call Options still capable of being exercised (whether at such time or at a future time):
(a)no Existing Shareholder (nor any of its Associated Companies or Immediate Relations) shall sell or agree to sell any of its Shares to Cirrata (or any other member of the Ambac Group) other than a sale carried out pursuant to and in accordance with clauses 13.2, 13.3 or 15, the MIP or as otherwise permitted by any of the Transaction Documents; and
(b)neither Cirrata nor any other member of the Ambac Group shall purchase or agree to purchase any Shares held by an Existing Shareholder (or any of its Associated Companies or Immediate Relations) other than a purchase carried out pursuant to and in accordance with clauses 13.2, 13.3 or 15, the MIP or as otherwise permitted by any of the Transaction Documents,
and the Company shall not register any purported Transfer of Shares made in contravention of this clause 13.1.2.
13.1.3Subject to clause 14.4.1, any Existing Shareholder may Transfer all or part of its Shares to an Associated Company or an Immediate Relation on giving five Business Days' prior written notice to the Company provided that (i) upon such Transfer the Associated Company or Immediate Relation will assume the same rights and obligations as the relevant Transferring Shareholder hereunder, (ii) the Transferring Shareholder shall remain jointly and severally liable for such obligations with the relevant Associated Company or Immediate Relation (and in particular, without prejudice to the generality of the foregoing, the Transferring Shareholder shall remain bound by any provisions under clause 11 which apply to it) and (iii) such Existing Shareholder shall not Transfer all or any part of its Shares under this clause 13.1.3 to a Prohibited Transferee. The Associated Company or Immediate Relation (as the case may be) shall re-transfer its Shares to the Transferring Shareholder or (if so directed by the Transferring Shareholder) to another Associated Company or Immediate Relation of that Transferring Shareholder immediately if it ceases to be an Associated Company or an Immediate Relation of that Transferring Shareholder.
13.2Put and Call Options
13.2.1In this clause 13.2:
(a)"Relevant Shares" means,
(i)in relation to a Call Option: in respect of an Existing Shareholder, such number of Ordinary Shares as is equal to the lower of the total number of shares then held by Existing Shareholder, and:
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(A)25% of such Existing Shareholder's Shares as at Completion; plus
(B)any Unexercised Call Options; plus
(C)in the event that following Completion there has been a new issue of Ordinary Shares (including by way of dividend) to the relevant Existing Shareholder other than pursuant to the MIP (such new Ordinary Shares issued to such Existing Shareholder being "Additional Shares") prior to a relevant Option Exercise Date, such number of Additional Shares; and
(ii)in relation to a Put Option: in respect of an Existing Shareholder, such number of Ordinary Shares as is equal to the lower of the total number of Ordinary Shares then held by Existing Shareholder and:
(A)25% of such Existing Shareholder's Shares as at Completion; plus
(B)any Additional Shares issued prior to a relevant Option Exercise Date (excluding any Shares issued pursuant to the MIP),
in each case, provided that if Additional Shares are issued they are subject to the Call Option and/or Put Option on the same basis as any Shares the Existing Shareholders have as at Completion. For example, (i) if such Additional Shares are issued the day immediately following Completion, then 25% of such Additional Shares are Relevant Shares at each relevant Option Exercise Date and (ii) if such Additional Shares are issued during 2026, then one-third of such Additional Shares are Relevant Shares at each Option Exercise Date from 2027 and provided further than no sweet equity shares issued pursuant to the MIP shall be subject to the Call Option and/or Put Option.
(b)"Option Exercise Date" means (i) in respect of the Call Option, 31 March of every year from 2026, so long as there are Unexercised Call Options and (ii) subject to clauses 13.2.10 and 13.2.11, in respect of the Put Option, 31 March 2026, 31 March 2027, 31 March 2028, 31 March 2029 and, to the extent that there remain Unexercised Put Options, 31 March in each subsequent calendar year;
(c)"Option Exercise Notice" means, in respect of a Call Option or a Put Option a notice submitted in writing to (i) the relevant Existing Shareholder (in respect of the Call Option) or (ii) Cirrata (in respect of the Put Option); and
(d)"Option Exercise Period" means, in respect of a Call Option or a Put Option as at the relevant Option Exercise Date, a 30-day period beginning on the fifth Business Day following agreement or determination of Adjusted EBITDA for the full-year immediately preceding the relevant Option Exercise Date
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(the Adjusted EBITDA to be calculated in accordance with Schedule 5;
(e)"Unexercised Call Options" means, as at a relevant Option Exercise Date, such number of Shares held by an Existing Shareholder that could have been purchased pursuant to the exercise of a Call Option at a previous Option Exercise Date but had not been so purchased as a result of such Call Option not being exercised; and
(f)"Unexercised Put Options" means, as at a relevant Option Exercise Date, such number of Shares held by an Existing Shareholder that could have been purchased pursuant to the exercise of a Put Option at a previous Option Exercise Date but had not been so purchased as a result of such Put Option not being exercised.
13.2.2Subject to clause 13.3.2, each Existing Shareholder shall grant to Cirrata the option (the "Call Option”) to purchase from such Existing Shareholder, and Cirrata hereby grants to such Existing Shareholder the option (the “Put Option”) to require Cirrata to purchase from such Existing Shareholder, the Relevant Shares as at the relevant Option Exercise Date. Should any transfer of shares by Cirrata to any other member of the Ambac Group take place, then the Call Option and the Put Option may be transferred to such other member of the Ambac Group provided Cirrata and the Management Shareholders' Representative, each acting reasonably, agree terms such that the position of Cirrata and that of the Management Shareholders is not adversely affected, failing which Cirrata shall still remain liable for payments under the Call Option and the Put Option.
13.2.3On or before the 31 January prior to the relevant Option Exercise Date, any of the Existing Shareholders and Cirrata shall notify the Board in writing if they wish the Board to prepare the Draft Documents in accordance with Schedule 5 in order to have an informed decision as to whether or not to exercise their Put Option or Call Option (as the case may be). If no such notice is given, then the Board shall not be required to prepare the Draft Documents, and no Put Option or Call Option may be exercised at the relevant Option Exercise Date.
13.2.4Each Call Option in respect of an Existing Shareholder and an Option Exercise Date shall be exercisable in respect of some or all of the Relevant Shares (provided that the maximum number of Shares to be purchased pursuant to a Put Option and/or Call Option in respect of an Existing Shareholder and any Option Exercise Date shall not exceed the total number of Relevant Shares) by service of an Option Exercise Notice by Cirrata on the relevant Existing Shareholder during the Option Exercise Period. Once served, the Option Exercise Notice shall be irrevocable.
13.2.5Each Put Option in respect of an Existing Shareholder and an Option Exercise Date shall be exercisable in respect of some or all of the Relevant Shares (provided that the maximum number of Shares to be purchased pursuant to a Put Option and/or Call Option in respect of an Existing Shareholder and any Option Exercise Date shall not exceed the total number of Relevant Shares) by service of an Option Exercise Notice by such Existing Shareholder on Cirrata during the Option
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Exercise Period. Once served, the Option Exercise Notice shall be irrevocable.
13.2.6To the extent a Call Option in respect of an Existing Shareholder has been exercised in accordance with clause 13.2.4, BCC and the Management Shareholders will not be entitled to exercise the Put Option with respect to the amount of Relevant Shares subject to the Option Exercise Notice with regard to the relevant Option Exercise Date.
13.2.7To the extent a Put Option has been exercised by an Existing Shareholder in accordance with clause 13.2.5, Cirrata will not be entitled to exercise the Call Option with respect to the amount of Relevant Shares subject to the Option Exercise Notice with regard to the relevant Option Exercise Date.
13.2.8The purchase price of a share that is the subject of an exercised Put Option or Call Option as at a relevant Option Exercise Date shall be as follows:
(a)in respect of BCC, any Management Shareholder who is not a Leaver and any Management Shareholder who is a Good Leaver other than within limbs (e) or (f) of the definition of Good Leaver, the purchase price per share shall be calculated in sterling on a fully diluted basis based on an aggregate equity value for 100% of the Shares (including any Shares that may be issued pursuant to the MIP, or, as appropriate for accounting for any MIP-related dilution) equal to (i) 16.0 x Adjusted EBITDA (as at the immediately preceding Accounting Reference Date) less (ii) Net Debt (as at the immediately preceding Accounting Reference Date) (it being noted that Net Debt is to be determined by reference to the consolidated Group excluding shareholdings in Subsidiaries' interest and, if it is negative, it shall be added to the calculation) plus (iii) the Working Capital Adjustment (as at the immediately preceding Accounting Reference Date) (it being noted that the Working Capital Adjustment is to be determined by reference to the consolidated Group excluding shareholdings in Subsidiaries' interest and, if it is negative, it shall deducted from the calculation), and any Leakage (as defined in the Share Purchase Agreement) in respect of the relevant Shareholder (from the immediately preceding Accounting Reference Date to (and including) the Closing Date of the relevant Call Option or Put Options) shall be deducted from the aggregate Purchase Price payable to that Shareholder;
(b)in respect of any Management Shareholder who is a Good Leaver within limbs (e) or (f) of the definition of Good Leaver, the purchase price shall be the lower of:
(i)the purchase price calculated in accordance with clause 13.2.8(a); and
(ii)the purchase price that would be calculated in accordance with clause 13.2.8(a) if Adjusted EBITDA were for the most recently completed financial year of the Company ending 31 December prior to the date the relevant Good Leaver’s employment terminated; and
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(c)in respect of any Management Shareholder who is a Bad Leaver, the purchase price shall be the amount that would have been calculated in accordance with clause 13.2.8(b) if the figure "16.0" were replaced by "10.0".
13.2.9Completion of the sale and purchase of Relevant Shares pursuant to the exercise of a Put Option or a Call Option shall take place on the fifth Business Day following the relevant Option Exercise Date, subject to any Regulatory Extension (the "Closing Date"). At such completion:
(a)Cirrata will pay to the relevant Existing Shareholder the aggregate purchase price as calculated in accordance with 13.2.8, such payment to be satisfied by:
(i)(at Cirrata's election) procuring the issue of such shares of Ambac Stock to the relevant Existing Shareholder as is calculated as follows:
image_0a.jpg
where:
C = such part of the purchase price to be payable to the relevant Existing Shareholder in shares of Ambac Stock, up to a maximum amount equal to such Existing Shareholder's pro rata (by number of Ordinary Shares to be sold by such Existing Shareholder to the total number of Ordinary Shares to be sold by Existing Shareholders at such time) share of the lower of (A) 35% of the aggregate purchase price payable to all Existing Shareholders and (B) the absolute cumulative value of four days of Ambac Stock traded, based on the average volume and VWAP traded during the 25 consecutive trading days prior to (but not including) the date of the Option Exercise Date (such determined price, the “Ambac Stock Price”);
VWAP = the volume weighted average price in USD for a share of common stock in Ambac (as calculated by Bloomberg Financial LP using the function “AMBC US <Equity> VWAP”) for the period comprising the 25 consecutive trading days prior to (but not including) the date of the Option Exercise Date (such period the "Trading Period"); and
(ii)the balance of such aggregate purchase price by payment in cash to such bank account of the Existing Shareholder as has been nominated to Cirrata in writing (it being understood that the sterling cash balance for a relevant Existing Shareholder is the excess of the aggregate purchase price (which is denominated in sterling) to be paid to the relevant Existing Shareholder over the sterling value of the aggregate Ambac Stock to be delivered to the relevant Existing Shareholder);
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(b)upon receipt of the aggregate purchase price, the relevant Existing Shareholder shall (i) deliver to Cirrata a stock transfer form and the original share certificate (or an indemnity for a lost share certificate in favour of the Company in such form as is reasonably acceptable to the Board) in respect of the transferring Relevant Shares and (ii) warrant to Cirrata that such Existing Shareholder (A) is the sole legal and beneficial owner of the transferring Relevant Shares free from any Encumbrances, (B) has the right to exercise all voting, economic and other rights over such transferring Relevant Shares and (C) has the right to transfer such Relevant Shares with full title guarantee and free from any Encumbrances.
Cirrata undertakes to the Existing Shareholders that it will pay to each Existing Shareholder in respect of whom a Put Option or a Call Option has been exercised as of a relevant Option Exercise Date the same proportions of Ambac Stock and cash.
Notwithstanding the foregoing, if the resulting number of shares of Ambac Stock to be issued to any Existing Shareholder pursuant to this clause 13.2.9 would reasonably be expected to result in that Existing Shareholder beneficially owning (as determined in accordance with Rule 13d-3 under the Exchange Act) more than 4.9% in aggregate of the Outstanding Shares as of the close of market on the final date of the Trading Period, then the number of shares of Ambac Stock to be issued to each Existing Shareholder shall be decreased pro rata to the extent necessary to ensure that the Existing Shareholders beneficially own in aggregate no more than 4.9% of the Outstanding Shares as of the close of market on the final date of the Trading Period. If, as a result of such reduction in the number of Ambac Stock issued, the Existing Shareholders would receive Ambac Stock with an aggregate value (expressed as a USD cash amount) lower than the amount they would have received without such reduction, then Cirrata shall pay in cash (in GBP) to each Existing Shareholder on the Closing Date an amount equal to such Existing Shareholder’s pro rata amount of such difference.
Notwithstanding anything to the contrary in this Deed, if between the final date of the Trading Period and the Closing Date, with respect to the Outstanding Shares, there shall have been any dividend (whether in cash, stock or otherwise) subdivision, reclassification, recapitalisation, split, combination, exchange or readjustment of shares, or any similar event in each case with a record date during such period, then the number of shares of Ambac Stock to be issued will be appropriately adjusted to reflect such dividend, subdivision, reclassification, recapitalisation, split, combination, exchange or readjustment of shares, or any similar event.
Subject to the forgoing, the resulting number of shares of Ambac Stock shall be allocated between the Existing Shareholders pro rata, save that the number of shares of Ambac Stock received by any Existing Shareholders may be rounded down by Ambac to the nearest whole number so as not to issue a fraction of a unit of common stock;
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(c)the Company shall issue to the Existing Shareholder a balancing share certificate for the remaining Shares held by such Existing Shareholder; and
(d)notwithstanding the foregoing, the number of shares of Ambac Stock issued pursuant to each Put Option and Call Option, when considered collectively with the number of shares of Ambac Stock issued as Consideration Stock (as defined in the Share Purchase Agreement), shall not exceed 19.9% of the number of outstanding shares of Ambac Stock at the date of the Share Purchase Agreement unless approved by Ambac’s shareholders pursuant to the rules of the New York Stock Exchange. If such approval is not received prior to the date on which the Ambac Stock would have been issued but for this sub-clause 13.2.9(d), then the number of shares of Ambac Stock to be issued to each Existing Shareholder shall be decreased pro rata to the extent necessary to ensure that when taken together with the shares of Ambac Stock issued as Consideration Stock (as defined in the Share Purchase Agreement) shall not exceed 19.9% of the number of outstanding shares of Ambac Stock at the date of the Share Purchase Agreement. If, as a result of such reduction in the number of Ambac Stock issued, the Existing Shareholders would receive Ambac Stock with an aggregate value (expressed as a USD cash amount) lower than the amount they would have received without such reduction, then Cirrata shall pay in cash (in GBP) to each Existing Shareholder on the Closing Date an amount equal to such Existing Shareholder’s pro rata amount of such difference.
13.2.10To the extent an Existing Shareholder continues to hold Unexercised Put Options, then such put options shall roll forward such that an additional put option shall become exercisable in respect of Relevant Shares on 1 March 2030 and on 1 March in each subsequent calendar year, and the provisions of this clause 13.2 shall apply as if:
(a)such additional put option were a Put Option; and
(b)31 March 2030 and 31 March in each subsequent calendar year were each an Option Exercise Date.
13.2.11The provisions of clause 13.2.10 shall continue as at 1 March for each subsequent calendar years with references to each year set out in such clause being construed as being the year in such subsequent period until, in respect of an Existing Shareholder, there are no further Unexercised Put Options, at which point such Existing Shareholder's Put Options shall expire, provided that in no event shall any Put Option accumulate such that more than the Relevant Shares can be subject to a Put Option in any calendar year.
13.2.12The Call Option shall not expire until there are no Unexercised Call Options remaining and the Call Option shall continue to operate in accordance with this clause 13.2 until such expiration.
13.2.13In the event that Cirrata does not pay (or procure the payment of) any aspect of any amount payable to an Existing Shareholder in respect of the sale and purchase of Relevant Shares by the applicable Closing Date, then:
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(a)interest will accrue on such amount unpaid at the US prime rate (as published by the Wall Street Journal) plus 7% per annum from the date such amount should have been paid until the date it is actually paid; and
(b)such Existing Shareholder may, at any time prior to such amount and applicable interest being paid, notify Cirrata in writing, such notice to take effect 30 days from the date of such notice, that the sale and purchase pursuant to the applicable Put Option or Call Option shall terminate and the Existing Shareholder shall not be required to sell the applicable Relevant Shares to Cirrata, provided that such termination will not be effective if Cirrata pays such amount and any applicable interest to the Existing Shareholder within the five Business Day period.
13.2.14Resale Registration Statement
(a)If any Put Option or Call Option over an Existing Shareholder's Shares is exercised and Ambac has elected to pay a portion or all of the purchase price in Ambac Stock then, no later than 5:30 pm New York Time on the 5h Business Day (the “Filing Date”) following the Closing Date, Ambac will have filed a registration statement on Form S-3, or if such form is not then available, on Form S-1 (or in each case any successor form) (each, a “Resale Registration Statement”) with the SEC registering the resale of the shares of Ambac Stock delivered to the Existing Shareholder pursuant to this Deed (and any other shares of Ambac Stock issued in respect of the applicable Shares upon any stock split, stock dividend, recapitalization, reclassification, merger, consolidation or similar event) (collectively, such securities until such time that such securities (i) have been disposed of pursuant to an effective Resale Registration Statement, (ii) are able to be sold without restriction as to volume or manner of sale pursuant to Rule 144 or (iii) have been disposed of to a transferee which does not have any rights under this Deed, the “Registrable Securities”) in accordance with any reasonable method of distribution elected by the Existing Shareholders (in such context, each, a “Seller”). Ambac will use reasonable best efforts to cause the Resale Registration Statement to be declared effective by the SEC as soon as practicable thereafter, but in no event later than the earlier of (i) 60 days from the Filing Date and (ii) the 5th Business Day after the date Ambac is notified (orally or in writing, whichever is earlier) by the SEC that the Resale Registration Statement will not be “reviewed” or will not be subject to further review (such date on which the Resale Registration Statement is declared effective, the “Effective Date”).
(b)Ambac will advise each Seller promptly and in any event within one (1) Business Day (at Ambac’s expense): (i) when the Resale Registration Statement or any post-effective amendment thereto has been filed and when it becomes effective; (ii) of any request by the SEC for amendments or supplements to the Resale Registration Statement or the prospectus included therein or for additional information; (iii) of the issuance by the SEC of any stop order suspending the
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effectiveness of the Resale Registration Statement or the initiation of any proceedings for such purpose; (iv) of the receipt by Ambac of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (v) of the occurrence of any event that requires the making of any changes in the Resale Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading (provided that any such notice will solely provide that the use of the Resale Registration Statement or prospectus has been suspended without setting forth the reason for such suspension). Notwithstanding anything to the contrary set forth herein, Ambac will not, when so advising any Seller of such events, provide such Seller with any material, non-public information regarding Ambac. Ambac will use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Resale Registration Statement promptly. Upon the occurrence of any event contemplated in clauses (ii) through (v) above, Ambac will use its reasonable best efforts to, as soon as practicable, prepare a post-effective amendment to such Resale Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to the holder of Registrable Securities included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c)Once declared effective, Ambac will cause the Resale Registration Statement to be continuously effective and usable until such time as there are no longer any Registrable Securities (the “Effectiveness Period”). If the Resale Registration Statement ceases to be effective under the Securities Act for any reason at any time during the Effectiveness Period, Ambac will promptly cause the Resale Registration Statement to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Resale Registration Statement) or amend the Resale Registration Statement in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of the Resale Registration Statement.
(d)Ambac will supplement and amend the Resale Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by Ambac for such Resale Registration Statement if required by the Securities Act or as reasonably requested by Seller.
(e)Ambac will provide a draft of the Resale Registration Statement to each Seller for review at least five (5) Business Days in advance of filing the Resale Registration Statement. In no event will any Seller be identified as a statutory underwriter in
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the Resale Registration Statement, unless required by the SEC.
(f)Upon the effectiveness of any Resale Registration Statement covering any Registrable Securities and in connection with the transfer of any Registrable Securities, Ambac will promptly instruct (or direct its counsel to so instruct and deliver a customary legal opinion) and use reasonable best efforts to cause the Transfer Agent for the shares to (i) remove any restrictive legends related to the book entry account holding such shares and (ii) make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends.
(g)Indemnification.
(i)Ambac agrees to indemnify and hold harmless, to the extent permitted by law, any Seller, any Seller’s directors, officers, employees, advisors and agents, to the extent applicable, and any person who controls any Seller (within the meaning of the Securities Act or the Exchange Act) and each affiliate of any Seller (within the meaning of Rule 405 under the Securities Act) (collectively “Covered Persons”) from and against any and all losses, including any liabilities, claims, costs, fees, expenses, taxes, losses, judgments, damages, fines, awards, settlements and penalties, or injuries, whether or not involving the claim of another person (collectively, “Losses”) caused by any untrue or alleged untrue statement of material fact contained in any Resale Registration Statement, prospectus included in any Resale Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or caused by or related to any violation or alleged violation of the Securities Act or Exchange Act; provided, however, that Ambac will not be liable to any Covered Person in any such case to the extent that any such Loss arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such Resale Registration Statement or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to Ambac, in writing, by or on behalf of such Covered Person specifically for use in the preparation thereof.
(ii)Each Seller agrees to indemnify and hold harmless Ambac against any losses resulting from any untrue statement of material fact contained in the Resale Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any
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information or affidavit so furnished in writing by or on behalf of the Seller expressly for use therein. In no event will the aggregate liability of any Seller under this clause (ii) be greater in amount than the dollar amount of the net proceeds received by the Seller upon the sale of the Registrable Securities received by the Seller in connection with the sale of the Registrable Securities pursuant to any Resale Registration Statement.
(iii)Any person entitled to indemnification pursuant to this clause (iii) will (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice will not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) permit such indemnifying party to assume the defence of such claim with counsel reasonably satisfactory to the indemnified party. If such defence is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent, which consent will not be unreasonably withheld or delayed. An indemnifying party who elects not to assume the defence of a claim will not be obligated to pay the fees and expenses of more than one counsel (and any local counsel as may reasonably be needed) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party will, without the consent of the indemnified party (which consent will not be unreasonably withheld or delayed), consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
13.2.15For so long as there are any Put Options or Call Options still capable of being exercised (whether at such time or at a future time):
(a)the strategic direction of the Group shall be determined by the Board;
(b)Cirrata recognises that there is significant value in the Put Options and the Call Options and that neither Cirrata nor any company in the Ambac Group outside the Group shall take any action to intentionally distort the financial performance of the Group in bad faith in a way that adversely affects the calculation of the purchase price of Shares that are the subject of a Put Option or Call Option in accordance with clause 13.2.8 in a way that is not immaterial:
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(c)Cirrata shall not cause or permit a change to the accounting reference date of any Group Company; or
(d)Cirrata shall procure that the Company does not pay any dividends or other distributions which would have the result that the Group Companies do not have sufficient working capital to carry on their business in accordance with the Business Plan;
(e)Cirrata shall not (and shall procure that none of the companies in the Ambac Group outside the Group shall):
(i)disclose to companies in the Ambac Group outside the Group any Competitive Information in a way which causes material detriment to the commercial interests of the Group;
(ii)use Competitive Information for the benefit of another company in the Ambac Group outside the Group which causes material detriment to the commercial interests of the Group;
(iii)systematically target the business, customers, clients or suppliers of any Group Company with the intention of diverting business away from the Group; and;
(f)where it or any company in the Ambac Group outside the Group has established, acquired or developed any business that competes with the business of the Group, it shall in good faith work with the Company and the Existing Shareholders with a view to mitigating any negative impact on the business of the Group and reasonably seeking opportunities to achieve synergies and realise opportunities between the businesses.
(g)If BCC or any Management Shareholder believes that there is or may be a breach of any of the provisions of this clause 13.2.15(b) through (g), they shall notify the Board as soon as reasonably practicable and in any event within 60 days. Cirrata shall have 30 days to cure such breach. Cirrata shall not be liable for a breach of this clause 13.2.15 to the extent that such liability arose or was increased as a result of a failure by BCC or any Management Shareholder to provide notification to Cirrata within this 60-day period.
13.2.16BCC payment to Management Shareholders
(a)Upon the completion in accordance with clause 13.2.9 of a Transfer of Shares (excluding Additional Shares) held by BCC following the exercise of a Put Option or a Call Option, BCC shall pay an amount equal to 11.97192% of the aggregate exercise price payable to BCC to the Management Shareholders, such amount to be inclusive of the employer costs of Employer National Insurance and apprenticeship levy and be split pro rata to their holdings of the Shares held by the Management Shareholders as at the date of this Deed. Any such payments shall be made to such bank accounts of such Management Shareholders as they may inform BCC in writing at least two Business Days prior to payment.
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(b)The Management Shareholders shall be required to pay to their respective employing Group Company all employment-related Tax liabilities owed by any such Management Shareholder under applicable law (including any UK employee income tax and employee and employer National Insurance contributions and their equivalents as applicable under the requirements of the US Internal Revenue Service) in respect of any payment under clause 13.2.16(a), and it is agreed and acknowledged by the parties that such obligation on the part of the Management Shareholders shall be satisfied by:
(i)Cirrata deducting an amount equal to such Tax liabilities from the exercise price payable to BCC, and such amount shall be paid to the relevant Group Companies; and
(ii)BCC shall make the relevant payments under clause 13.2.16(a) to the Management Shareholders net of any Tax so deducted.
(c)BCC and the Management Shareholders acknowledge and agree:
(i)that the payments referred to in clause 13.2.16(a) recognise the restrictive covenants that apply to the Management Shareholders under clause 11 and the leaver provisions that apply to the Management Shareholders under clause 15; and
(ii)to the extent not satisfied pursuant to clause 13.2.16(a), the Existing Shareholders pro rata to the value of the overall aggregate purchase price received by such Existing Shareholder in respect of the relevant exercise of Put Option or Call Option (as applicable) as calculated in accordance with 13.2.8 shall indemnify each Group Company for all employment related Tax liabilities required to be paid by such Group Company (including where such Group Company is obliged to pay such liabilities on behalf of the relevant Management Shareholders) under applicable law in respect of or in consequence of the adjustments pursuant to clause 13.2.16(a) and/or payment of the amounts referred thereto (including any UK employee income tax, employee National Insurance contributions and employer National Insurance contributions and their equivalents as applicable under the requirements of the US Internal Revenue Service). Cirrata shall be able to enforce this clause 13.2.16 on behalf of the relevant Group Company.
(d)If as a result of or in consequence of the payments and adjustment pursuant to clause 13.2.16(a), the Company or any other Group Company obtains (by way of deduction, credit or otherwise) the benefit of any deductible expense for corporation tax (a "Tax Benefit"), Cirrata and each Management Shareholder shall procure that the Company or other Group Company (as applicable) shall pay the relevant Management Shareholder(s) (without deduction and pro rata to
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the payments to be made to them pursuant to clause 13.2.16(a)) an amount equal to the aggregate of:
(i)the value of the Tax Benefit obtained by the Company or other Group Company (as applicable);
(ii)the value of any further Tax Benefit obtained by the Company or other Group Company (as applicable) as a result of the making of any payment pursuant to clause 13.2.16,
in either case as soon as soon as reasonably practicable upon the Company or other Group Company (as applicable) obtaining such Tax Benefit.
13.3Sale of Company
13.3.1If, prior to ____ August 2026, there has been:
(a)a Change of Control; or
(b)an agreement entered into prior to such date pursuant to which, upon completion of such agreement, there would be a Change of Control,
then each Existing Shareholder may either:
(i)require Cirrata to purchase all of its Shares (other than Shares issued pursuant to the MIP) at the purchase price calculated in accordance with clause 13.2.8 as if all of the Shares held by the Existing Shareholder were Relevant Shares and the date five days prior to the Change of Control were a Option Exercise Date, with completion of such sale and purchase to take place in accordance with clause 13.2.9 as if the giving of such notice were the exercise of a Put Option, with completion of such sale and purchase to take place immediately prior to the Change of Control; or
(ii)exercise their tag along rights pursuant to clause 13.5 at the 100% equity value that is the greater of (a) the 100% equity value pursuant to the terms of the Change of Control; and (b) the 100% equity value pursuant to the Share Purchase Agreement less the sum of the total payments made for Shares at Completion and the total payments made in subsequent purchase of Shares from Existing Shareholders pursuant to the exercise of any Call Option or Put Option.
For the avoidance of doubt, nothing in this clause 13.3.1 prevents Cirrata from exercising the Drag Along Option in respect of such transaction. In the event that an Existing Shareholder does not elect to use its rights under clause 13.3.1(i) and Cirrata exercises the Drag Along Option, then such Drag Along Option shall be at the 100% equity value that is the greater of (a) the 100% equity value pursuant to the terms of the Change of Control; and (b) the 100% equity value pursuant to the Share Purchase Agreement less the sum of the total payments made for Shares at Completion and the total payments made in subsequent purchase of Shares from Existing Shareholders pursuant to the exercise of any Call Option or Put Option.
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13.3.2If, after ____ August 2026, there has been:
(a)a Change of Control other than a Change of Control that was the subject of an agreement falling within clause 13.3.1 (b); or
(b)an agreement entered into after such date pursuant to which, upon completion of such agreement, there would be a Change of Control (and such Change of Control takes place in accordance with the terms of such agreement),
then any unexercised Put Options and Unexercised Call Options set out in clause 13.2 shall lapse (without prejudice to the provisions of clauses 13.4 and 13.5).
13.3.3For as long as an Existing Shareholder holds Shares in the Company, Cirrata and Ambac shall consult in good faith with BCC and/or a representative of the Management Shareholders (as applicable) on, and during, the process of any sale of the Company and the operation of a process with the intention of achieving a valuation at fair market value for the Company.
13.3.4Cirrata shall keep the Existing Shareholders reasonably informed of any discussions or negotiations with any person in respect of a transaction that would, on completion, result in a Change of Control, and of any actual Change of Control.
13.4Drag Along Rights
13.4.1Drag Along Sale
(a)If there is proposed a sale of Shares by Cirrata to a Proposed Buyer which would result in either a Loss of Control or a Change of Control, Cirrata shall have the right to require all the other Shareholders (but not some only) ("Called Shareholders") to Transfer all their Callable Shares to the Proposed Buyer (or as the Proposed Buyer directs) in accordance with the provisions of this clause 13.4 ("Drag Along Option").
(b)Cirrata shall procure, prior to exercising the Drag Along Option, that an offer is made by the Proposed Buyer to purchase the whole of the issued Shares of the Company (a "Drag Along Sale").
(c)Cirrata may exercise the Drag Along Option by giving written notice to that effect to the Called Shareholders (with a copy to the Company) ("Drag Along Notice") at least 20 Business Days prior to the anticipated date on which their Shares shall be Transferred to the Proposed Buyer.
(d)The Drag Along Notice shall specify:
(i)that the Called Shareholders are required to Transfer the Called Shares pursuant to this clause 13.4;
(ii)the person to whom the Called Shares are to be Transferred;
(iii)the purchase price payable for the Called Shares, which shall be payable:
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(A)(where the consideration to be paid to Cirrata is to be a mixture of cash and non-cash consideration and the cash element comprises no less than 50% of the overall value of the consideration) in the same proportions of cash and non-cash consideration as for Cirrata's Shares provided that any non-cash consideration shall be paid in Liquid Securities (subject to any lockup period of no longer than three months) and shall reflect the Transfer Value of those Called Shares held by the Called Shareholder;
(B)(where either the consideration payable to Cirrata is entirely non-cash or the consideration is to be a mixture of cash and non-cash consideration and the cash element comprises less than 50% of the overall value of the consideration) in the proportions of 50% cash and 50% non-cash consideration provided that any non-cash consideration shall be paid in Liquid Securities (subject to any lockup period of no longer than three months) and shall reflect the Transfer Value of those Called Shares held by the Called Shareholder; and
(C)(where the consideration is to be paid to Cirrata in cash only) in cash and shall reflect the Transfer Value of those Called Shares held by the Called Shareholder,
For the purposes of (A) and (B) above, "Liquid Securities" means ordinary voting shares issued by a company listed on a Qualifying Investment Exchange with a market capitalisation greater than $750m and for these purposes "Qualifying Investment Exchange" means a recognised stock exchange (but not any junior market) in the United States or Europe including the Main Market (but not AIM) of the London Stock Exchange, NYSE or NASDAQ;
(iv)the proposed date of completion of the Proposed Transfer; and
(v)subject to 13.4.1(f), the other terms and conditions applicable to the Drag Along Sale, including time of payment, true, complete and accurate copies of all agreements, documents and instruments then available, reasonably required to be executed by Cirrata to give effect to the Transfer of the Called Shares to the Proposed Buyer (the "Drag Along Documents") provided that any such terms and conditions are applied on the same basis to every Shareholder pro rata to their respective portions of the total proceeds that the Called Shareholders are entitled to receive.
(e)Once issued, a Drag Along Notice shall be irrevocable. However, a Drag Along Notice shall lapse if, for any reason, the sale of Called Shares has not completed within 90 Business Days of the Drag Along Notice being served, subject to any Regulatory Extension. Cirrata may serve further Drag Along Notices following the lapse of any particular Drag Along Notice.
(f)No Drag Along Notice shall require a Called Shareholder to agree to any terms except those specifically set out herein. To the extent
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reasonably required Called Shareholders who are employees of any Group Company at the time of the Drag Along Sale shall be obliged to make customary business warranties (subject to customary limitations) provided that any liability for those warranties is fully insured with recourse being limited to the insurance and the cost of the policy being met by the Company or the buyer. All Called Shareholders shall also be required to warrant to the Proposed Buyer in customary terms that:
(i)the Called Shareholder has the requisite power and authority to enter into and perform the Transfer of its Called Shares and the Transfer shall constitute a valid, legal and binding obligation on the Called Shareholder;
(ii)the Called Shareholder is the sole legal and beneficial owner of its Called Shares and is entitled to Transfer the legal and beneficial title to its Called Shares to the Proposed Buyer free from all Encumbrances, without the consent of any other person; and
(iii)the Called Shareholder is selling its Called Shares with full title guarantee.
(g)No Called Shareholders will be required to provide or adhere to any restrictive covenants or indemnities.
13.4.2Completion of Drag Along Sale
(a)Completion of the Drag Along Sale shall take place on the date proposed by Cirrata in the Drag Along Notice (which shall be the same date for Cirrata and all Called Shareholders) unless:
(i)Cirrata and all Called Shareholders agree otherwise in writing; or
(ii)that date is less than 15 Business Days after the date on which the Drag Along Notice is served, in which case the completion date shall be the 15th Business Day after service of the Drag Along Notice, unless Cirrata and all Called Shareholders agree otherwise in writing.
provided always that any Completion shall be subject to any Regulatory Extension.
(b)On or before the date of completion of the Drag Along Sale ("Sale Completion Date"), each Called Shareholder shall execute and deliver Drag Along Documents, including stock transfer forms for the Called Shares, together with (A) the relevant shares certificates (or suitable indemnity for any lost share certificates) and (B) a waiver of any applicable pre-emption rights duly signed to the Proposed Buyer (or as otherwise agreed in the Drag Along Documents).
(c)To the extent that the Proposed Buyer has not paid the consideration due on the Sale Completion Date, the Called Shareholders shall be entitled to the return of the Drag Along Documents, including stock transfer forms and share certificates (or suitable indemnity) for the relevant Called
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Shares; and the Drag Along Sale (including the sale to the Proposed Buyer of the Shares held by Cirrata in the Company) shall not be capable of being completed.
(d)If any Called Shareholder does not, on or before the date scheduled for completion, execute and deliver (in accordance with clause 13.4.2(b)) a Transfer in respect of all of the Called Shares held by it, clause 13.6.1 shall apply.
(e)For the purposes of giving full effect to the share transfers in this clause 13.4, Cirrata shall and shall use all reasonable endeavours to ensure (to the extent possible) that the Proposed Buyer shall, use all reasonable endeavours to procure (so far as they are able) that any conditions applicable to the sale and transfer of Cirrata's Shares are satisfied as soon as reasonably practicable and, correspondingly in connection with the satisfaction of any conditions, that any applications required for a Change of Control of the Company are submitted to the relevant Regulatory Authorities as soon as possible and in any event at least five Business Days prior to the service of a Drag Along Notice.
13.5Tag Along Rights
13.5.1Subject always to clause 13.1.1, the provisions of this clause 13.5 shall apply if there is a proposed sale of Shares by Cirrata to a Proposed Buyer that would result in a Loss of Control or a Change of Control ("Proposed Transfer").
13.5.2Tag Along Sale
(a)Where Cirrata is proposing a Proposed Transfer and the Drag Along Option is not exercised pursuant to clause 13.4, then before making the Proposed Transfer, Cirrata shall procure that the Proposed Buyer makes an offer ("Tag Along Offer") to each of the other Shareholders (the "Remaining Shareholders") to purchase all of the Tagging Shares held by the Remaining Shareholders on the same terms and conditions as Cirrata is proposing to sell its Shares(subject always to paragraph (b) below) and the same relative proportion of cash and non-cash consideration (if relevant) as offered to Cirrata, provided that any non-cash consideration shall be paid in Liquid Securities (subject to a lockup period of no longer than three months), for a consideration per Share that reflects the Transfer Value of those Shares held by the Remaining Shareholders.
(b)No Remaining Shareholder shall be required to agree to any terms in respect of a Tag Along Offer except those specifically set out in this clause 13.5.2(b).
(i)To the extent reasonably required, Remaining Shareholders who accept the Tag Along Offer and who are employees of any Group Company at the time of the Tag Along Offer will provide customary business warranties subject to customary limitations provided that any exposure is fully insured with no recourse
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other than to the insurance and the cost of the policy being met by the Company or the buyer;
(ii)where BCC is a Remaining Shareholder and accepts the Tag Along Offer, BCC will not provide customary business warranties;
(iii)Other than as set out above, no Remaining Shareholder who accepts the Tag Along Offer shall be obliged to make any representation or warranty or to incur any liability to the Proposed Buyer other than warranting to the Proposed Buyer that:
(A)such Remaining Shareholder has the requisite power and authority to enter into and perform the Transfer of its Shares and the Transfer shall constitute a valid, legal and binding obligation on such Remaining Shareholder;
(B)such Remaining Shareholder is the sole legal and beneficial owner of its Shares and is entitled to Transfer the legal and beneficial title to its Shares to the Proposed Buyer free from all Encumbrances, without the consent of any other person;
(C)such Remaining Shareholder is selling its relevant Shares with full title guarantee; and
(iv)Any liability of any Remaining Shareholder shall be several (and not joint or joint and several), and no Remaining Shareholders will be required to provide or adhere to any restrictive covenants or indemnities.
(c)Any Tag Along Offer shall be made by written notice ("Tag Along Offer Notice") at least 20 Business Days prior to the anticipated date on which Cirrata’s Shares shall be Transferred to the Proposed Buyer ("Tag Along Offer Sale Date"). To the extent not described in any accompanying documents, the Tag Along Offer Notice shall set out:
(i)the identity of the Proposed Buyer;
(ii)the purchase price offered for the Shares, which shall reflect the Transfer Value of those Shares held by the Remaining Shareholders and, to the extent applicable, the price per Share that would be payable pursuant to clauses 13.3.1(b)(i) and 13.3.1(b)(ii);
(iii)the Tag Along Offer Sale Date; and
(iv)the other terms and conditions applicable to the Proposed Transfer, including true complete and accurate copies of any draft or definitive agreements then available that are relevant to the Remaining Shareholder's potential participation in the Proposed Transfer (the "Tag Along Documents").
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(d)If the Proposed Buyer fails to make the Tag Along Offer to any of the Remaining Shareholders in accordance with this clause 13.5, Cirrata shall not be entitled to complete the Proposed Transfer.
(e)Each Remaining Shareholder may elect to accept the Tag Along Offer in respect of some or all of their Tagging Shares and participate in the Proposed Transfer by delivering a written notice to Cirrata within 15 Business Days after deemed delivery of the Tag Along Offer in accordance with clause 22 (a “Tag Along Sale”). Any such notice shall:
(i)specify which Tagging Shares the Remaining Shareholder intends to sell;
(ii)attach the Tag Along Documents duly executed by the Remaining Shareholder; and
(iii)attach original share certificates and other evidence of title to the Tagging Shares of the relevant Remaining Shareholder to be purchased by the Proposed Buyer (or, in the case of any lost certificate(s) or other evidence of title, a customary indemnity in favour of the Company in a form reasonably satisfactory to the Proposed Buyer.
(f)If the Tag Along Offer is accepted by one or more of the Remaining Shareholders, prior to the Tag Along Offer Sale Date, the completion of the Proposed Transfer shall be conditional on completion of the purchase of the Tagging Shares specified to be sold by that Remaining Shareholder.
13.6Power of Attorney
13.6.1Each Management Shareholder hereby constitutes and unconditionally appoints and grants to Cirrata and to the Company, each of them acting individually, with full power of substitution (each, an “Attorney”) full power of attorney to act as such Management Shareholder’s true and lawful representative and attorney, in such Management Shareholder’s name, place and stead (and such Management Shareholder’s capacity as a holder of Shares), to perform, make, execute, sign, acknowledge, deliver or file all deeds, agreements, instruments, certificates, powers of attorney and other documents, which may be necessary, required or useful by any applicable law or otherwise as required to give effect and complete such Drag Along Sale or Tag Along Sale in the name of the relevant Management Shareholder in order to give effect to the relevant Drag Along Sale or Tag Along Sale, subject to Cirrata having indemnified and continuing to indemnify the relevant Management Shareholder for any losses, costs or expenses suffered or incurred as a result of any misuse of this power of attorney contained in this clause 13.6.1, except in case of fraud or gross negligence of the relevant Management Shareholder. The power of attorney contained in this clause 13.6.1 shall remain in force in relation to each such Management Shareholder until this Deed is terminated in respect of the rights and obligation of such on terms reasonably satisfactory to the relevant Management Shareholder.
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13.6.2Cirrata and the Company undertake to only us the power of attorney set out in clause 13.6.1 if any relevant Management Shareholder does not comply with its obligations in respect of a Drag Along Sale or a Tag Along Sale.
14.General Transfer Terms
14.1Transfer terms
Any Transfer of Shares pursuant to this Deed shall be on terms that those Shares:
(a)are Transferred free from all Encumbrances; and
(b)are Transferred with the benefit of all rights attaching to them as at the Transfer date of those Shares.
14.2Registration
Each of the parties shall procure so far as within their powers that a Transfer of Shares is not approved for registration unless this Deed and the Articles have been complied with in full. The Company shall procure that each share certificate issued by it shall carry the following statement:
"Any disposition, transfer, charge over or dealing in any other manner in the Shares represented by this certificate is restricted by a Shareholders' Agreement dated ____ August 2024 as the same may be amended from time to time."
14.3Further assurance on Transfers
Each party shall use all reasonable endeavours to do or procure so far as within its power to be done all things and carry out all acts which are reasonably necessary to affect the Transfer of the Shares in accordance with the Deed and the Articles for the purpose of giving the full benefit of the provisions of this Deed or the Articles (as applicable) in a timely fashion.
14.4Assumption of rights and obligations
14.4.1The parties to this Deed shall procure that no person other than an Existing Shareholder acquires or is issued any Shares unless it enters into and executes a Deed of Adherence agreeing to be bound by this Deed as a Shareholder.
14.4.2From the date of execution of the Deed of Adherence, the new Shareholder shall be a party and be entitled to the benefit, subject to the obligations, of this Deed as a Shareholder (without prejudice to clause 13.1.3).
14.4.3All Deeds of Adherence executed pursuant to clause 14.4.2 shall also be executed by the Company for itself and as attorney for all those other persons who are then parties and by executing this Deed (or as the case may be, the relevant Deed of Adherence) each of those other persons unconditionally and irrevocably appoints the Company as its attorney for that purpose.
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14.4.4In the event that a Shareholder Transfers part of its Shares to an Associated Company, that Associated Company shall exercise any Voting Rights and/or consent rights (whether under this Deed or otherwise) in the same manner and at the same time as the Transferor Shareholder exercises any such rights.
14.4.5If a Shareholder Transfers any of its Shares to any of its Associated Companies in accordance with the terms of this Deed, any reference in this Deed to the Voting Rights of such Shareholder shall (without double counting) be calculated on the basis of the Transferor Shareholder and such Associated Company(ies).
14.5Removal of appointees
14.5.1If a Shareholder ceases to be a Shareholder other than as a result of a Transfer of Shares to an Associated Company or an Immediate Relation in accordance with this Deed all of its appointees to the Board shall cease to be appointed as Directors immediately upon Transfer of its Shares. If the continuing Shareholders request, such Shareholder shall do all such things and sign all such documents as may otherwise be necessary to terminate such appointments or remove such persons from such appointments in a timely manner.
14.5.2The termination of appointments to the Board shall take effect without any liabilities for the Company for compensation for loss of office or otherwise except to the extent that the liability arises in relation to a service contract with a Director who was acting in an executive capacity.
15.Leavers
15.1If an event within limbs (a) or (b) of the definition of Good Leaver occurs, the relevant Good Leaver (or their estate if applicable) shall notify the other Shareholders and the Company in writing as soon as reasonably practicable and, if the Good Leaver (or their estate if applicable) does not, he/she shall be deemed to have given notice of the relevant event on the first date on which any one of the other Shareholders or the Company becomes aware of such event.
15.2Within a period of 60 calendar days following a Management Shareholder becoming a Good Leaver other than within limbs (e) or (f) of the definition of Good Leaver, either the relevant Good Leaver or Cirrata may, by giving written notice to the other, require that all of the Shares held by the Good Leaver (and any Immediate Relation to whom such Good Leaver has transferred any Shares) are purchased by Cirrata at the Transfer Price.
15.3If a Management Shareholder becomes a Good Leaver within limbs (e) or (f) of the definition of Good Leaver or becomes a Bad Leaver, Cirrata may, at its election, give notice to such Management Shareholder that all of the Shares held by such Management Shareholder (and any Immediate Relation to whom such Management Shareholder has transferred any Shares) are purchased by Cirrata at the Transfer Price.
15.4The purchase price payable for the Shares shall be payable in cash and non-cash consideration (as determined by Cirrata) in accordance with clause 13.2.9.
15.5In this clause 15, "Transfer Price" means the aggregate price for the Shares that would have been calculated for the Shares applying the calculations in
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clauses 13.2.8 and 13.2.9 as if all the Shares were Relevant Shares and the relevant Option Exercise Date were the last day of the calendar month immediately preceding the date the relevant Management Shareholder became a Leaver (without giving effect to any notice period for employment, service or engagement termination).
15.6Any sale and purchase of Shares made pursuant to clause 15.2 or 15.3 shall complete on the tenth Business Day following the giving of the relevant notice requiring such sale and purchase of the Shares, subject to any Regulatory Extensions. At such completion upon receipt of the aggregate purchase price, the relevant Management Shareholder shall give to Cirrata the same documentation and warranties as set out in clause 13.2.9(b).
15.7If a Leaver is committing, or if a Leaver who was a Good Leaver subsequently commits, a breach of their obligations under clause 11 of this Deed prior to the later of 31 March 2029 and one year following the Reference Date in respect of that Leaver and, where such breach relates to the conducting of any Competing Activity, does not cease that Competing Activity within one month of being notified by the Company in writing, then the Board may notify such Leaver in writing of the same if it has determined, or has reasonable grounds to believe, that the Leaver is in breach of their obligations under clause 11 and that such Leaver is designated or redesignated as a Bad Leaver, provided that:
15.7.1the Board shall act reasonably in determining, or shall have reasonable grounds to believe, whether a Leaver has breached their obligations under clause 11 and prior to making a decision to designate or redesignate a Leaver as a Bad Leaver the Board shall:
(a)inform each of the Directors of the Company and the Leaver in writing of their intention to assess whether the Leaver is in breach of their obligations under clause 11 of this Deed; and
(b)have received a written opinion or formal advice from an independent King's Counsel or senior barrister with appropriate experience mutually agreed by the Company and the Leaver or, failing such agreement, a King's Counsel nominated by the Chair of the Bar Counsel on application of either the Company or the Leaver, such opinion or advice confirming that either (a) on the balance of probabilities, the Leaver is in breach of their obligations under clause 11 of this Deed; or (b) he or she was unable to determine whether the Leaver was in breach of their obligations under clause 11 of this Deed as a result of receiving insufficient information or cooperation from the Leaver, having allowed the Leaver reasonable opportunity to provide such information and cooperation. The opinion of the Kings Counsel or barrister shall be made available to both the Company and the Leaver; and
15.7.2the Board must inform the Leaver of its intention to assess whether the Leaver has breached his obligations within 6 months of the Board becoming aware of the circumstances giving rise to the Board's belief that the relevant Leaver has or may have breached his obligations under clause 11 and shall discuss with the Leaver for a further 90 days to attempt to reach agreement between the parties. If agreement is not reached and the Board determines that it wishes to assess whether the Leaver has breached his obligations under clause 11, the Board shall inform the Leaver of the identity of the independent King's Counsel or senior barrister they have nominated to provide the written opinion or formal advice referred to in paragraph (a) above within 12 months of the Board becoming aware of the circumstances giving rise to the
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Board's belief that the relevant Leaver has or may have breached their obligations under clause 11, failing which, the Board shall not be permitted to designate or redesignate the Leaver as a Bad Leaver in respect of the circumstances in question (without prejudice to the Board's right to designate or redesignate the Leaver as a Bad Leaver should the relevant circumstances change).
15.8If a Management Shareholder becomes a Bad Leaver pursuant to clause 15.7, such Management Shareholder shall pay to Cirrata an amount equal to the difference between any amounts received in respect of the exercise of any Put Option or Call Option and the amounts such Management Shareholder would have received had the purchase price at each relevant Option Exercise Date been calculated in accordance with clause 13.2.8(c).
16.Obligations of Outgoing Shareholder
16.1On or as soon as possible following their Leaving Date, the Outgoing Shareholder shall sign and execute all documents and perform all acts that the Company reasonably requires for the purpose of enabling the Company to recover any outstanding interest or right of the Company in or for the purpose of Transferring to the Company, or as it may direct, any property of the Company which on their Leaving Date is held by the Outgoing Shareholder on behalf of the Company.
17.Duration and termination
17.1Duration
Subject to the other provisions of this Deed, this Deed shall continue in full force and effect without limit in time until the earliest of:
(a)the Shareholders then holding Shares agreeing in writing to terminate it; or
(b)the date on which all of the Shares, to the extent remaining in issue, are legally and beneficially owned by one Shareholder; or
(c)an effective resolution is passed or a binding order is made for the winding-up of the Company other than to effect a scheme of reconstruction or amalgamation,
provided that this Deed shall cease to have effect with respect to any Outgoing Shareholder save for any of its provisions which are expressed to continue in force after termination and such termination shall be without prejudice to any liability or obligation in respect of any matters, undertakings or conditions which shall not have been observed or performed by the relevant Shareholder prior to it ceasing to hold any Shares.
17.2Termination
Termination of this Deed shall be without prejudice to any liability or obligation in respect of any matters, undertakings or conditions which shall not have been observed or performed by the relevant party prior to such termination or which is expressly or by implication intended to continue in force on or after termination including clauses 1, 4.2.3, 4.4, 10, 11, 14, 16, 18, 22, 23, 28, 31 and 37.
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18.Confidentiality
18.1Each Shareholder and Outgoing Shareholder undertakes that they shall not at any time disclose to any person any Confidential Information nor shall they make any announcement concerning the Business or affairs of the Company or the other Shareholders except as permitted by clause 18.2.
18.2Each Shareholder and Outgoing Shareholder may disclose Confidential Information:
(a)to:
(i)any of its Associated Companies and its and their employees, representatives or advisers only and who need to know such information for the purposes of carrying out the party's obligations under this Deed;
(ii)any sponsor, underwriter or broker for the purposes of facilitating a sale (subject to such person first having executed a confidentiality undertaking in favour of the Company in a form reasonably acceptable to the Board);
(iii)any potential purchaser of Shares or of assets of the Group, provided that such disclosure may not be made by the selling Shareholder to any person such selling Shareholder knows to be, or have a material interest in, a business that directly competes with the Business;
(iv)in respect of BCC on a need to know basis to any actual or prospective shareholder, investor, manager, trustee, general partner or limited partner in or to any of its Associated Companies including any actual or potential co-investment vehicle Controlled by any of its Associated Companies (excluding, for the avoidance of doubt, any portfolio company of any Fund managed or advised by Bain Capital Credit, LP or Bain Capital Insurance Solutions, LP), actual or potential provider of finance, security agent, agent and any directors, employees and representatives of each of the foregoing entities;
(v)in respect of Cirrata, to any person any Confidential Information relating to the Group or its business for bona fide business reasons;
(vi)as may be required in connection with enforcement of provisions of this Deed;
(vii)in the ordinary course in connection with their role as an employee or officer of the Company or any Group Company; and
(viii)as may be required or advisable to be disclosed (on the advice of an attorney) by law, a court of competent jurisdiction or any governmental or Regulatory Authority or Tax Authority (as defined in the Share Purchase Agreement) or stock exchange,
in each case, provided that (A) no Competitive Information may be disclosed to, or utilised for the benefit of, any Competitor (including any
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Associated Company of BCC or any Representative of BCC or its Associated Companies that is a Competitor) other than pursuant to (vi), and (B) each Shareholder and Outgoing Shareholder shall ensure that any person to whom he discloses Confidential Information (other than (vi)) complies with this clause 18.
18.3In the case of a disclosure to a potential purchaser of Shares in accordance with clause 18.2(a)(iii), the disclosing party shall:
(a)require the potential purchaser to sign a confidentiality agreement including terms of confidentiality no less strict that those set out in this Deed;
(b)undertake to the other Shareholders that such disclosing party will immediately inform the other Shareholders in the event it becomes aware of a breach of that confidentiality agreement including (where it would not be a breach of law or contract to do so) the identity of the prospective purchaser; and
(c)be responsible for any loss or damage whatsoever caused to the other Shareholders or the Company by the failure of the potential purchaser to comply with the terms of this Deed.
18.4Except as provided for in clause 18.2, no Shareholder or Outgoing Shareholder shall use any Confidential Information for any purpose other than to perform his obligations under this Deed or pursuant to agreements or arrangements entered into in accordance with this Deed.
18.5Notwithstanding anything in this Deed to the contrary, nothing in this Deed: (a) prohibits a Management Shareholder from providing truthful testimony or accurate information in connection with any investigation being conducted into the business or operations of the Company or any of its affiliates by any government agency or other regulator that is responsible for enforcing a law on behalf of the government or otherwise communicating with, or providing information to, any such government agency or other regulator regarding conduct or action undertaken or omitted to be taken by the Company or any of its affiliates that the Management Shareholder reasonably believes is illegal or in material non-compliance with any financial disclosure or other regulatory requirement applicable to the Company or any of its affiliates or (b) requires Management Shareholder to obtain the approval of, or give notice to, the Company or any of its employees or representatives to take any action permitted under limb (a) of this clause 18.5.
19.Compliance
19.1The Company shall, and shall procure that each Subsidiary of the Company shall, comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption and financial crime.
19.2Each Shareholder undertakes to the other Shareholders and the Company that it will not, and will (to the extent within its powers) procure that its Associated Persons and the Company and its Associated Persons will not, engage in any activity, practice or conduct in connection with its interest in the Company or the operation of the Business which would give rise to an offence under or non-compliance with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption and financial crime that may apply to the Company and its Associated Persons from time to time, including the Bribery Act 2010.
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20.Guarantee
20.1Ambac guarantees to the Existing Shareholders and the Company the due and punctual performance, observance and discharge by Cirrata of all the Guaranteed Obligations if and when they become performable or due under this Deed (or (as the case may be) any agreement entered into pursuant to or in connection with it).
20.2If Cirrata defaults in the payment when due of any amount that is a Guaranteed Obligation, Ambac shall, on five Business Days written notice on demand by an Existing Shareholder, unconditionally pay that amount to the Existing Shareholders in the manner prescribed by this Deed (or (as the case may be) any agreement entered into pursuant to or in connection with it) as if it were Cirrata.
20.3Ambac as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under clause 20.1 and clause 20.2, agrees to indemnify and keep indemnified the Existing Shareholders on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Existing Shareholders arising out of, or in connection with, the Guaranteed Obligations not being recoverable for any reason or any failure of Cirrata to perform or discharge any of its obligations or liabilities in respect of the Guaranteed Obligations.
20.4The guarantee in this clause 20 is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable by Cirrata to the Existing Shareholders in respect of the Guaranteed Obligations, after adjustment for any intermediate payment or discharge in full or in part of the Guaranteed Obligations.
20.5The liability of Ambac under the guarantee in this clause 20 shall not be reduced, discharged or otherwise adversely affected by:
20.5.1any act, omission, matter or thing which would have discharged or affected the liability of Ambac had it been a principal debtor instead of a guarantor or indemnifier; or
20.5.2anything done or omitted by any person which, but for this provision, might operate or exonerate or discharge Ambac or otherwise reduce or extinguish its liability under the guarantee in this clause 20.
20.6Ambac waives any right it may have to require the Existing Shareholders (or any trustee or agent on their behalf) to proceed against or enforce any other right or claim for payment against any person before claiming from Ambac under this clause 20.
20.7Ambac shall, on a full indemnity basis, pay to the Existing Shareholders on demand the amount of all costs and expenses (including legal and out-of-pocket expenses and any value added tax on them) incurred by the Existing Shareholders in connection with:
20.7.1the preservation, or exercise and enforcement, of any rights under or in connection with the guarantee in this clause 20 or any attempt so to do; and
20.7.2any discharge or release of this guarantee.
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20.8Until all amounts which may be or become payable by Cirrata under or in connection with this Deed have been irrevocably paid in full, and unless the Existing Shareholders otherwise direct in writing, Ambac shall not exercise any security or other rights it may have by reason of performing its obligations under this clause 20, whether such rights arise by way of set-off, counterclaim, subrogation, indemnity or otherwise.
20.9The guarantee in this clause 20 shall be in addition to and independent of all other security which the Existing Shareholders may hold from time to time in respect of the discharge and performance of the Guaranteed Obligations.
20.10This clause 20 shall automatically terminate on the earlier of:
20.10.1the Guaranteed Obligations having been satisfied in accordance with the terms of this Deed; or
20.10.2subject to clause 20.11 and clause 20.12, a Change of Control of the Company; or
20.10.3subject to clause 20.11 and clause 20.12, Cirrata (or, following any transfer of Shares to another member of the Ambac Group as contemplated in clause 13.2.2, that other member of the Ambac Group) ceasing to own any Shares; or
20.10.4the Existing Shareholders ceasing to own any Shares,
provided that, in the event of clause 20.10.3 applying, the provisions of clause 20.1 to 20.9 shall continue to apply to any Guaranteed Obligation which had become due for performance prior to such event occurring until the relevant Guaranteed Obligation has been performed in full.
20.11Prior to any Transfer by Cirrata, Cirrata may, in its sole discretion, elect by written notice to BCC and the Management Shareholders’ Representative on the Loss of Control to arrange for the purchaser of the Shares (the “Purchaser”) to provide a guarantee (the “Co-Guarantee”) in a form and from a company with a creditworthiness acceptable to BCC and the Management Shareholders’ Representative, each acting reasonably (the “Co-Guarantor”) to cover a portion of the Guaranteed Obligations equal to the Co-Guarantor's direct or indirect equity interest in the Company after closing of the Transfer provided that Ambac’s guarantee in this clause 20 shall (i) also cover the obligations of the Co-Guarantor under the Co-Guarantee, and (ii) continue to apply in respect of the portion of the Guaranteed Obligations that is not covered by the obligations of the Co-Guarantor under the Co-Guarantee for so long as there are any Put Options or Call Options still capable of being exercised (whether at such time or at a future time).
20.12If Cirrata does not serve a written notice to BCC and the Management Shareholders’ Representative pursuant to clause 20.11, the guarantee in this clause 20 from Ambac shall continue in full force and effect following the Transfer.
21.Entire Agreement
21.1This Deed contains the whole agreement between the parties to the exclusion of any terms implied by law which may be excluded by contract and supersede any previous written or oral agreement relating to its subject matter.
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21.2Each party agrees and acknowledges that, in entering into this Deed, it is not relying on any representation, warranty or undertaking not expressly incorporated herein, other than as set forth in any other Transaction Document.
21.3Any terms implied by law in any jurisdiction are excluded to the fullest extent permitted by law.
21.4Each of the parties agrees and acknowledges that, except as otherwise set out in this Deed, its only right and remedy in relation to any representation, warranty or undertaking made or given in or in connection with this Deed shall be for: (i) breach of the terms of this Deed and (ii) injunctive relief or specific performance of this Deed and each of the parties waives all other rights and remedies (including rights and remedies to claim damages in tort or under statute or civil codes, or to (wholly or partly) rescind, nullify or terminate (whether by court or arbitral order or otherwise) this Deed) in relation to any such representation, warranty or undertaking.
21.5Nothing in this clause 21 excludes or limits any liability for fraud or fraudulent misrepresentation.
22.Notices
22.1Any notice or other communication in connection with this Deed (each, a “Notice”) shall be:
(a)in writing in English; and
(b)delivered by hand, email, recorded or special delivery or courier using an internationally recognised courier company.
22.2The parties' addresses, email addresses and contacts are as set out as against their names in Schedule 1 and to the Company (i) at the address as set out in the recitals to this Deed and (ii) to the email address [email protected].
22.3A party may change its details given in clause 22.2 by giving notice, the change taking effect for the party notified of the change at 9:00am on the later of:
(a)the date, if any, specified in the notice as the effective date for the change; or
(b)the date five Business Days after deemed receipt of the notice.
22.4Subject to clause 22.5, a Notice shall be effective upon receipt and shall be deemed to have been received:
(a)at the time recorded by the delivery company, in the case of recorded delivery;
(b)at the time of delivery, if delivered by hand or courier; or
(c)at the time of sending if sent by e-mail, provided that receipt shall not occur if the sender receives an automated message that the e-mail has not been delivered to the recipient.
22.5A Notice that is received after 5.00pm on any day, or on a Saturday, Sunday or public holiday in the place of receipt, shall be deemed to be received at 09.00am on the next day that is not a Saturday, Sunday or public holiday in the place of receipt.
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22.6For the purposes of this clause 22, all references to time are to local time in the place of receipt.
22.7This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23.Damages not an adequate remedy
Without prejudice to any other rights or remedies which a party may have under this Deed, the parties acknowledge and agree that damages may not be an adequate remedy for a breach of clauses 10 and 18 and the remedies of specific performance and other equitable relief may be available for any threatened or actual breach of any such provisions and no proof of special damages shall be necessary for the enforcement of the rights under this clause 23.
24.Conflict with the Articles
Subject to the provisions of this Deed, if, during the continuance of this Deed, there shall be any conflict between the provisions of this Deed and the provisions of the Articles then, during such period, the provisions of this Deed shall prevail as between the Shareholders. The Shareholders shall exercise all voting and other rights and powers available to them to give effect to the provisions of this Deed and (if necessary and to the extent legally permissible) ensure that any required amendment is made to the Articles. Nothing contained in this Deed shall be deemed to constitute an amendment of the Articles or any previous articles of association of the Company.
25.Costs
The parties agree that the costs attributable to the negotiation, preparation and execution of this Deed and the New Articles shall be borne as set out in clause 19.8 of the Share Purchase Agreement.
26.Registration, Stamp, Transfer Taxes and Duties
Cirrata shall bear the cost of all registration, stamp and transfer taxes and duties or their equivalents in all jurisdictions where such fees, taxes and duties are payable as a result of any Transfer of Shares to it from an Existing Shareholder.
27.Waiver
No failure or delay by a party to exercise any right or remedy provided under this Deed or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
28.Further Assurance
Each of the parties shall, and shall use reasonable endeavours to procure that any necessary third party shall, from time to time execute such documents and perform such acts and things as any party may reasonably require to give effect to the terms of this Deed and give any party the full benefit of this Deed.
29.Unlawful fetter
The Company is not bound by any provision of this Deed to the extent that it constitutes an unlawful fetter on any statutory power of the Company.
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30.Several liability
Unless expressly provided otherwise, all representations, warranties, indemnities, undertakings, covenants, agreements and obligations made, given or entered into by more than one person in this Deed are made, given or entered into severally.
31.Severance
31.1If any provision in this Deed shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.
31.2If and to the extent that it is not possible to delete or modify the provision, in whole or in part, under clause 31.1, then such provision or part of it shall, if and to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Deed and the legality, validity and enforceability of the remainder of this Deed shall, subject to any deletion or modification made under clause 31.1, not be affected.
32.No partnership
No provision of this Deed is intended to or shall operate to create a partnership between any of the parties or authorise any party to act as agent for any other party for any purpose.
33.Variation
No variation of this Deed shall be effective unless it is in writing and signed by or on behalf of (i) the Company, (ii) Cirrata, (iii) BCC and (iv) a majority (by number of Shares held) of Management Shareholders, except that a variation of any provision of this Deed which would materially adversely affect the rights of any Shareholder under this Deed or the Articles (such Shareholder being the "Affected Shareholder") as compared to the rights of the other Shareholders shall require the prior written consent of such Affected Shareholders.
34.Assignment
34.1Subject to clause 34.2 and except as otherwise expressly provided in this Deed, a party may not (whether at law or in equity) without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) assign, transfer, grant any security interest, hold on trust or deal in any other manner with the benefit of the whole or any part of this Deed, nor purport to do any of the same, provided that Cirrata may assign without the consent of any of the other parties hereto the benefit of the whole or any part of this Deed to Cirrata V UK Limited in event that (i) Cirrata has Transferred its Shares to Cirrata V UK Limited and (ii) at the time of such assignment both Cirrata and Cirrata V UK Limited are members of the Ambac Group.
34.2Each Shareholder may assign the whole or any part of its accrued rights under this Deed to any person to whom Shares are Transferred in accordance with this Deed and the Articles and who has executed and delivered a Deed of Adherence (or is otherwise a party to this Deed as a Shareholder).
34.3For the avoidance of doubt, the guarantee in clause 20 and matters requiring Required Consents in Schedule 3 are personal to the Existing Shareholders as at the date of this Deed and cannot be assigned other than to their Associated
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Companies or Immediate Relations to whom the relevant Existing Shareholder has Transferred Shares.
35.Rights of Third Parties
Except as expressly stated in this Deed, a person who is not a party to this Deed may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
36.Counterparts
36.1This Deed may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Deed by signing any such counterpart.
36.2Transmission of an executed counterpart of this Deed by email (in PDF, JPEG or other agreed format) or by electronic signing (including by DocuSign or any equivalent platform) shall take effect as delivery of an executed counterpart of this Deed.
37.Governing Law and Jurisdiction
37.1This Deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
37.2Each party irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Deed, its subject matter or formation (including non-contractual disputes or claims). Each of the parties irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.
38.Process Agent
38.1Subject to clause 38.4, any party that is not incorporated or resident within the United Kingdom (each a "Relevant Party") shall appoint and thereafter maintain (for so long as any claim may be brought under or in connection with this Deed) the appointment of an agent within England for service of proceedings in relation to any matter arising under or in connection with this Deed (the "Process Agent") as soon as practicable and, in any event, within 28 days of the date of this Deed and service on the Process Agent in accordance with clause 23.2 shall be deemed to be effective service on the Relevant Party. Upon the service of proceedings on a Process Agent appointed by or on behalf of the Relevant Party in relation to any matter arising under or in connection with this Deed, a copy of such proceedings shall also be delivered to that Relevant Party in accordance with clause 22, it being acknowledged and agreed that delivery of or failure to deliver a copy of the proceedings to such Relevant Party shall not prejudice the service of proceedings on its Process Agent.
38.2A Relevant Party shall notify the other parties in writing of any change in the address of the Process Agent within 28 days of such change.
38.3Failure by any Process Agent appointed under this clause 38 to notify the Relevant Party of the service of process will not invalidate the proceedings concerned.
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38.4A Relevant Party shall not be required to appoint a Process Agent for so long as any party to this Deed is able to serve proceedings on the Relevant Party without having to take any further action or obtain any further consent than would be required if the Relevant Party had appointed a Process Agent in England.
38.5If the Process Agent described in clause 38.1 ceases to be able to act as such or to have an address in England, the Relevant Party shall appoint a new Process Agent in England and shall deliver to the parties within 14 calendar days a copy of a written acceptance of appointment by the Process Agent.
38.6Nothing in this Deed shall affect the right of service of process in any other manner permitted by law.
IN WITNESS OF WHICH this document has been executed and delivered as a deed by each of the parties hereto after the Schedules.


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Schedule 1: SHAREHOLDERS
SHAREHOLDINGS FOLLOWING COMPLETION
[***]
65


Schedule 2: DEED OF ADHERENCE
[***]

67


Schedule 3: RESERVED MATTERS
[***]
70


Schedule 4: BOARD MATTERS
[***]
71
    

Schedule 5: ADJUSTED EBITDA
[***]
75
    

Schedule 6: EXTRACTS FROM PREVIOUS SHAREHOLDERS’ AGREEMENTS
[***]


85
    

Schedule 7: MIP SUMMARY TERMS
[***]
88
    

Schedule 8: UNDERWRITING FRANCHISE MANAGEMENT FOR EXISTING SUBSIDIARIES
[***]


93
    

Executed as a deed by Ambac Financial Group, Inc., acting by an officer who, in accordance with the laws of the State of Delaware, is acting under the authority of the company


/s/ Claude LeBlanc…………………………….
Name: Claude LeBlanc
Title: President and Chief Executive Officer


[Signature Page – Project Brio – Shareholders’ Agreement]



Executed as a deed by Cirrata V LLC, acting by an officer who, in accordance with the laws of the State of Delaware is acting under the authority of the company


/s/ Claude LeBlanc………………………….
Name: Claude LeBlanc
Title: President and Chief Executive Officer

[Signature Page – Project Brio – Shareholders’ Agreement]



Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]………………………………………………………
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..


Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..


Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***] …………………………………………………………
Occupation: [***]……………………………………………………..

[Signature Page – Project Brio – Shareholders’ Agreement]




[Signature Page – Project Brio – Shareholders’ Agreement]



Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..


Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..



Executed as a deed by     [***], acting by a director who, in accordance with the laws of Jersey, is acting under the authority of the company
)
)
)
)
 

/s/     [***]

[Signature Page – Project Brio – Shareholders’ Agreement]



Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..


Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..



Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***] ……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..
[Signature Page – Project Brio – Shareholders’ Agreement]




[Signature Page – Project Brio – Shareholders’ Agreement]



Executed as a deed by     [***] as trustee of the     [***] on behalf of itself and its beneficiaries

in the presence of:
)
)
) /s/     [***]
)
)

Witness:

Signature: [***]

Name: [***]

Address: [***]

Occupation: [***]


Signed as a deed by [***] ) /s/     [***]
In the presence of:
Witness:
Signature: [***]……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***] ……………………………………………………..

Executed as a deed by     [***] )
acting by a director ) /s/     [***]
In the presence of:
Witness:
Signature: [***] ……………………………………………………….
Name: [***]……………………………………………………………
Address: [***]…………………………………………………………
Occupation: [***]……………………………………………………..
[Signature Page – Project Brio – Shareholders’ Agreement]


Exhibit 10.2
Execution Version
CREDIT AGREEMENT
Dated as of August 1, 2024
among
CIRRATA GROUP LLC,
as a Borrower,
CIRRATA V LLC,
as a Borrower,
CIRRATA V UK LIMITED,
as a Borrower
AMBAC FINANCIAL GROUP, INC.,
as the Parent,
UBS AG, STAMFORD BRANCH
as the Agent, and
THE LENDERS PARTY HERETO
______________________
UBS SECURITIES LLC
as Lead Arranger and Bookrunner



TABLE OF CONTENTS
PAGE
i


ii


iii



iv


APPENDICES
Appendix A-1    Commitments
SCHEDULES
Schedule 5.05    Litigation
Schedule 5.14(a)    Options, Warrants, Calls, Rights, Commitments or Other Agreements
Schedule 5.14(b)    Subsidiaries
Schedule 7.01    Existing Indebtedness
Schedule 7.02    Existing Liens
Schedule 7.07    Existing and Committed Investments
Schedule 7.10    Restrictive Agreements
Schedule 11.02    Addresses for Notices
EXHIBITS
Exhibit A-1    Form of Compliance Certificate
Exhibit A-2     Form of Company Audit Certificate
Exhibit B    Form of Note
Exhibit C-1    Form of Loan Notice
Exhibit C-2    Form of Continuation/Conversion Notice
Exhibit D    Form of Assignment and Assumption
Exhibit E    Form of U.S. Pledge Agreement
Exhibit F-1    United States Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit F-2    United States Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit F-3    United States Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit F-4    United States Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit G    Form of Global Note


v


CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of August 1, 2024, by and among CIRRATA GROUP LLC, a Delaware limited liability company (“Cirrata Group”), CIRRATA V LLC, a Delaware limited liability company (“Cirrata V”), CIRRATA V UK LIMITED, a limited liability company incorporated under the laws of England and Wales with company number 15854655 (“Cirrata UK”, and together with Cirrata Group and Cirrata V, the “Borrowers”; individually, each a “Borrower”) AMBAC FINANCIAL GROUP, INC., a Delaware corporation (the “Parent”), the lenders from time to time party to this Agreement (collectively, the “Lenders”; individually, each a “Lender”), and UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity, the “Agent”) for the Lenders.
WHEREAS, the Borrowers desire to obtain from the Lenders a term loan facility in an aggregate principal amount of $150,000,000;
WHEREAS, the Borrowers intend to use the proceeds of the term loan facility to (i) finance the acquisition by the Beat Purchaser (as defined below) of 60% of the outstanding ordinary shares of Beat Capital Partners Limited (the “Company”) pursuant to the Share Purchase Agreement, dated as of June 4, 2024 (as amended, supplemented, modified or assigned from time to time in accordance with the terms hereof and thereof, together with the exhibits and disclosure schedules thereto, the “Acquisition Agreement”) by and among the Beat Purchaser, the Parent, each of the sellers named therein (the “Sellers”) and the Company (the “Beat Acquisition”) and (ii) pay fees and expenses incurred in connection with the Transactions (as defined below).
WHEREAS, (i) the Parent is willing to guarantee the foregoing obligations of the Borrowers and to provide a pledge of the Capital Stock of Everspan Holdings, LLC, a Delaware limited liability company (“Everspan”) as security for such obligations and (ii) Cirrata V and Cirrata UK are willing to provide a pledge of all of the Capital Stock of the Company held by them as security for such obligations, all on the terms set forth herein and in the Security Documents.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
Article 1
Definitions
Section 1.1.Certain Defined Terms.
The following terms have the following meanings:
“AAC” means Ambac Assurance Corporation, a Wisconsin stock insurance company.
“Acquisition” means (a) any Investment by the Parent or any Borrower in a Person whereby such Person becomes a direct or indirect Subsidiary of the Parent or is merged, consolidated or amalgamated with or into the Parent or such Borrower (including any Investment in a Subsidiary or joint venture that serves to increase the Parent’s or any Borrower’s ownership interests therein) or (b) an acquisition by the Parent or any Borrower of the property and assets of any Person that constitutes all or substantially all of the assets of such Person or any division, line of business, book of business or business unit of such Person; provided that capital expenditures (as determined in accordance with GAAP) that do not, individually or as part of a series of related transactions, result in the acquisition of all or substantially all of the assets of any Person or any division, line of business, book of business or business unit of such Person shall be deemed not to be Acquisitions.
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“Acquisition Agreement” has the meaning specified in the recitals to this Agreement.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, membership interests, by contract or otherwise.
“Agent” means UBS AG, Stamford Branch, in its capacity as administrative agent under the Loan Documents.
“Agent-Related Persons” means the Agent and the Arranger in each case together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agent’s Office” means the Agent’s address and, as appropriate, account as set forth on Schedule 11.02 or such other address or account as the Agent may from time to time specify.
“Agreement” means this Credit Agreement.
“Annual Statement” means the annual statutory financial statement of any Insurance Subsidiary required to be filed with such Insurance Subsidiary’s domiciliary insurance commissioner (or similar authority), which statement shall be in the form required by such Insurance Subsidiary’s domiciliary insurance commissioner (or similar authority), or if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing annual statutory financial statements and shall contain the type of information permitted or required by such domiciliary insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Parent and its Subsidiaries concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act 2010.
“Anti-Money Laundering Laws” means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to an Obligor and its Subsidiaries, related to terrorism financing or money laundering including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the UK Proceeds of Crime Act 2002 and the UK Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.
“Applicable Margin” means, as of any date of determination, a percentage per annum equal to: (a) in respect of SOFR Loans, 4.50% and (b) in respect of Base Rate Loans, 3.50%; provided that the Applicable Margin shall automatically increase to (i) 5.50% in respect of SOFR Loans and 4.50% in respect of Base Rate Loans on November 1, 2024, (ii) 6.50% in respect of SOFR Loans and 5.50% in respect of Base Rate Loans on February 1, 2025 and (iii) 7.50% in respect of SOFR Loans and 6.50% in respect of Base Rate Loans on May 1, 2025.
2


“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Obligor provides to the Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agent or Lenders by means of electronic communications pursuant to Section 11.02(b).
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means UBS Securities LLC.
“Asset Sale” means, without duplication, any Disposition or series of related Dispositions by the Parent, any Borrower or any Pledged Entity of (i) AAC and its subsidiaries pursuant to the Aurora Transaction Agreements or any other Disposition of the Capital Stock of AAC or (ii) the Capital Stock of any direct Subsidiary of such Person which is an operating company (which shall (x) include any repurchase or redemption of Capital Stock constituting Collateral by the issuer of such Capital Stock and (y) exclude any Disposition to Parent or any Subsidiary).
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee substantially in the form of Exhibit D or in another form reasonably acceptable to the Agent and the Borrowers.
“Attorney Costs” means and includes all reasonable and documented out-of-pocket fees, expenses and disbursements of any law firm or other external legal counsel.
“Aurora Transaction Agreements” means the Stock Purchase Agreement, dated June 4, 2024, between Ambac Financial Group, Inc. and American Acorn Corporation, together with the other agreements contemplated thereunder.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, 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 3.08(d).
“Bail-In Action” shall mean 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” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.).
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“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 1/2 of 1%, (b) the Prime Rate and (c) Term SOFR for an Interest Period of one month beginning on such day (or if such day is not a Business Day, the Business Day immediately preceding such day) plus 1.00% per annum. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or Term SOFR, respectively
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Beat Acquisition” has the meaning specified in the recitals to this Agreement.
“Beat Purchaser” means, either Cirrata V or, if Cirrata V assigns its rights as a “Purchaser” under the Acquisition Agreement to Cirrata UK on or prior to the Closing Date, Cirrata UK.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.08.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Borrowers giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than 0.00%, such Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, 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 Agent and the Borrowers 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 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 Date” means the earliest to occur of the following events with respect to the 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
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(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 non-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.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the 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 Federal Reserve Board, the Federal Reserve Bank of New York, 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), 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 not, or as of a specified future date will not 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).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
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“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Borrower Representative” means Cirrata V LLC, in its capacity as Borrower Representative pursuant to the provisions of Section 1.08.
“Borrowers” has the meaning specified in the introduction to this Agreement.
“Business Day” means 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 where the Agent’s Office is located or New York City and, if such day relates to any SOFR Loan, means any such day that is also a U.S. Government Securities Business Day.
“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity of any bank or of any corporation controlling a bank.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase any of the foregoing; provided that, for the avoidance of doubt, Capital Stock shall not be deemed to include debt convertible or exchangeable for any of the foregoing.
“Capitalized Lease Liabilities” means, with respect to any Person, all monetary obligations of such Person under any leasing or similar arrangement that, in accordance with GAAP, would be classified as a capitalized lease, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined 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 terminated by the lessee without payment of a penalty. For purposes of this definition, whenever in this Agreement is it necessary to determine whether a lease is a capital lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on January 1, 2016.
“Cash Contribution Requirement” means the requirement that, substantially concurrently with the funding of the Loans, (i) the Parent shall have contributed cash to Cirrata V (the “Parent Cash Contribution”) and (ii) AAC shall have contributed cash to Cirrata V (the “AAC Cash Contribution”, and together with the Parent Cash Contribution the “Cash Contributions”) that, together with the value of equity in the Parent received by the Sellers (collectively, the “Cash and Equity Amount”), represents not less than 40% of the sum of (i) the aggregate gross proceeds of the Loans borrowed on the Closing Date and (ii) the sum of the amount of such Cash Contributions and the value of equity in the Parent received by the Sellers, in each case on the Closing Date (such sum, the “Funded Capitalization”); provided that any Cash Contribution for Capital Stock of Cirrata V (other than common stock) or for
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intercompany debt shall be on terms (including in the case of any intercompany debt, subordination terms) reasonably acceptable to the Lenders.
“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States or any State thereof in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of twelve months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000 and a short term deposit rating of at least A-1 by S&P and P-l by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally; (c) commercial paper of an issuer rated at least A-2 by S&P and P-2 by Moody’s at the time of acquisition thereof, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within nine months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P and A2 by Moody’s; (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) instruments equivalent to those referred to in clauses (a) through (f) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and customarily used for cash management purposes in any jurisdiction outside the United States; and (h) shares of money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (g) of this definition.
“Cash Management Obligations” means obligations in respect of treasury, depository and cash management services, including commercial credit cards, stored value cards, purchasing cards, treasury management, check drawing and automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management) and any arrangements or services similar to any of the foregoing.
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
“Change of Control” means (a) any acquisition, directly or indirectly, by any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of 35% or more of the outstanding shares of Voting Stock of the Parent, (b) the failure by the Parent to directly own, legally and beneficially, 100% of the Capital Stock in Cirrata Group, or (c) the failure by the Parent to own, legally and beneficially, directly or indirectly, 100% of the Capital Stock in Cirrata V and Cirrata UK.
“Cirrata Group” has the meaning specified in the introduction to this Agreement.
“Cirrata UK” has the meaning specified in the introduction to this Agreement.
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“Cirrata V” has the meaning specified in the introduction to this Agreement.
“Clean-up Expiration Date” means the first day following the end of the relevant Clean-up Period.
“Clean-up Period” means the period commencing on the Closing Date and ending on (and including) the date falling 90 days thereafter.
“Closing Date” means August 1, 2024.
“Code” means the U.S. Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder.
“Collateral” means, collectively, all of the Pledged Collateral and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Security Document in favor of the Agent for the benefit of the Secured Parties under any Security Document.
“Collateral and Guarantee Requirement” means the requirement that:
(a)the Agent shall have received (i) from the Parent, a counterpart of the U.S. Pledge Agreement duly executed and delivered on behalf of the Parent and (ii) from each of Cirrata V and Cirrata UK, a counterpart of the UK Share Pledge duly executed and delivered on behalf of Cirrata V and Cirrata UK;
(b)all documents and instruments, including Uniform Commercial Code financing statements and filings made to the Registrar of Companies of the United Kingdom, required by law or reasonably requested by the Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect or record such Liens to the extent, and with the priority, required by the Security Documents, shall have been filed, registered or recorded or delivered to the Agent for filing, registration or recording;
(c)the Agent shall have received stock certificates and powers in respect of any Collateral consisting of certificated Capital Stock;
(d)each Obligor shall have obtained all corporate or similar organizational consents and approvals required to be obtained by it in connection with the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting of the Liens granted by it thereunder;
(e)the Obligors shall have taken all other actions required under the Security Documents or reasonably requested by the Agent to create or perfect the Liens under the Security Documents; and
(f)all Obligations shall have been unconditionally guaranteed by the Parent.
“Commitment” means the commitment of a Lender to make a Loan pursuant to Section 2.01(a),
“Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Commitment as of the date hereof is set forth on Appendix A-1 hereto.
“Company” has the meaning specified in the recitals to this Agreement.
“Company Audit Certificate” means a certificate substantially in the form of Exhibit A-2.
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“Compensation Period” has the meaning specified in Section 2.10(b)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit A-1.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, 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” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.04 and other technical, administrative or operational matters) that the Agent, in consultation with the Borrower Representative, decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent, in consultation with the Borrower Representative, determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Net Worth” means, as of any date of determination, the consolidated stockholders’ equity of the Parent and its Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP.
“Contingent Obligation” means, without duplication, any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the debt, obligation or other liability of any other Person (other than by endorsements of instruments in the course of collection or indemnities under contracts entered into in the ordinary course of business and not in respect of Indebtedness), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Contingent Obligation of any Person shall (subject to any limitation set forth therein) be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit C-2.
“Credit Extension” means the making, conversion or continuation of a Loan.
“Debtor Relief Laws” means the Bankruptcy Code, and all other similar applicable liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, arrangement, receivership, insolvency, reorganization, winding up or similar debtor relief laws (including corporate statutes) of the United States, Canada or other applicable jurisdictions (including, without
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limitation, the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada)), in each case, from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or circumstance that constitutes an Event of Default or that, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.
“Defaulting Lender” means, subject to Section 2.12(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder or (ii) pay to the Agent or any Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower Representative or the Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within two Business Days after written request by the Agent or the Borrower Representative (or such later date as the Agent or the Borrower Representative, as applicable, shall agree), to confirm in writing to the Agent or the Borrower Representative that it will comply with its prospective funding obligations hereunder, or (d) the Agent has received notification that such Lender or any direct or indirect parent company thereof (i) is insolvent, or is generally unable to pay its debts as they become due, or has admitted in writing its inability to pay its debts as they become due, or has made a general assignment for the benefit of its creditors, (ii) is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment or (iii) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Department” means, with respect to any Insurance Subsidiary, the Governmental Authority of such Insurance Subsidiary’s jurisdiction of domicile with which such Insurance Subsidiary is required to file its Annual Statement.
“Disposition” means the sale, assignment, leasing as lessor (other than in the ordinary course), transfer, contribution, conveyance, issuance or other disposal of assets (including any sale and leaseback transaction and, in the case of any Borrower, the issuance or sale of its Capital Stock). The terms “Dispose of”, “Disposing of” and “Disposed of’ shall have correlative meaning.
“Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (a) above, in each case at any time on or prior to the date that is 91 days after the Latest Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to the date that is 91 days after the Latest Maturity Date; provided, however, that any (x) Capital Stock that would not constitute Disqualified Capital Stock but for provisions
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thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of a change in control or an asset sale occurring prior to date that is 91 days after the Latest Maturity Date shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Payment in Full of the Obligations and (y) if such Capital Stock is issued to any employee or to any employee benefit plan or other equity incentive plan for the benefit of employees of the Company or the Subsidiaries or by any such Plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Company or any Subsidiary in order to satisfy applicable compulsory statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Borrowers at such time on the basis of the Spot Rate (determined as of the applicable date of determination) for the purchase of Dollars with such currency.
“Dollars,” “dollars” and “$” each mean lawful money of the United States.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean 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.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; (d) a commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of business and (e) any other Person (other than a natural person or the Parent or any of its Subsidiaries or Affiliates), in each case of clauses (d) and (e) approved by (i) the Agent and (ii) unless an Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) has occurred and is continuing, the Borrower Representative (each such approval not to be unreasonably withheld); provided that the Borrower Representative shall be deemed to have approved an assignee unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Claims” means all written claims, complaints, notices or inquiries, by any Governmental Authority or other Person alleging potential liability or obligation under or noncompliance with any Environmental Law, or for release or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or
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otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief or other type of relief, resulting from or based upon the presence, placement, or Release (including intentional or unintentional, negligent or non- negligent, sudden or non-sudden or accidental or non-accidental placement, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, to, under or from property, whether or not owned, leased or operated by the Parent or any of its Subsidiaries, excluding, in any case, liabilities or claims arising under any insurance contract or policy, reinsurance agreement or retrocession agreement relating to any of the foregoing where the Parent or any of its Subsidiaries is the insurer.
“Environmental Laws” means all Requirements of Law relating to pollution or protection of the Environment, the release of any materials into the Environment, hazardous substances or wastes, air emissions, discharges to waste or public systems, or the protection of human health and safety.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), resulting from or based upon (a) any violation of Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Issuance” means the issuance of any shares of Capital Stock, equity securities or equity-linked securities (other than the issuance or exercise of any warrants or similar equity securities issued in connection with the sale of AAC) by the Parent, a Borrower or a Pledged Entity (other than (i) issuances in connection with executive compensation and/or employee benefits or incentive programs, (ii) any issuance resulting from the conversion of any convertible debt instrument that does not result in Net Proceeds received by the Parent, the Borrowers or the Pledged Entities, (iii) issuances to the Parent or any Subsidiary of the Parent or (iv) issuances of Capital Stock of the Parent in connection with any put options or call options set out in a shareholders’ agreement in respect of any joint venture in which an Obligor has an interest).
“ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Single Employer Pension Plan; (b) with respect to any Single Employer Pension Plan, the failure to satisfy the minimum funding standard under Sections 412 or 430 of the Code and Sections 302 or 303 of ERISA, whether or not waived, the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303 of ERISA with respect to any Single Employer Pension Plan or the failure to make a required contribution to a Multiemployer Plan; (c) a withdrawal by any Obligor or any ERISA Affiliate from a Single Employer Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal by any Obligor or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Single Employer Pension Plan or Multiemployer Plan; (f) the occurrence of an event or condition set forth in Section 4042 of ERISA that would reasonably be
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expected to cause the PBGC to terminate, or appoint a trustee to administer, any Single Employer Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate; (h) a Multiemployer Plan is determined to be in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, or, with respect to any Single Employer Pension Plan, a determination that it is “at risk” under Section 430 of the Code or Section 303 of ERISA; (i) the imposition of a Lien under Section 430(k) of the Code or Section 303(k) or 4068 of ERISA upon the property of any Obligor or any ERISA Affiliate; or (j) a contribution required to be made with respect to a Foreign Pension Plan has not been timely made, or any Obligor or any Subsidiary of an Obligor has incurred liabilities pursuant to one or more Foreign Pension Plans; or an Obligor or any Subsidiary of an Obligor has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Plan.
“Erroneous Payment” has the meaning assigned to it in Section 9.14(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.14(d)(i).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 9.14(d)(i).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.14(d)(i).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 9.14(e).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Everspan” has the meaning specified in the recitals to this Agreement
“Event of Default” has the meaning specified in Section 8.01.
“Exchange Act” means the Securities Exchange Act of 1934 and the regulations promulgated thereunder.
“Excluded Debt” means (i) Indebtedness among the Parent, the Borrowers and any of their Subsidiaries, (ii) working capital or overdraft facilities as in effect from time to time in the ordinary course of business, and any trade, vendor or customer finance-related financing in the ordinary course of business, (iii) Purchase Money Debt incurred in the ordinary course of business, (iv) Capitalized Lease Liabilities incurred in the ordinary course of business and Indebtedness incurred to finance the acquisition, construction or improvement of assets in the ordinary course of business, (v) [reserved], (vi) Indebtedness to refinance, renew, reprice, repay or defease (collectively, a “refinancing”) any indebtedness existing on June 4, 2024 and that has a maturity date on or prior to June 4, 2025; provided that such refinancing does not increase the aggregate principal or committed amount thereof (except for the capitalization of accrued interest, amounts in respect of original issue discount and fees and expenses reasonably incurred in connection with such refinancing) and (vii) commitments related to the foregoing clauses (i) through (vi).
“Excluded Taxes” means, with respect to the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Obligor under any Loan Document, (a) Taxes imposed on or measured by net income (however denominated, and including (for the avoidance of doubt) any backup withholding in respect thereof under Section 3406 of the Code or any similar provision of state, local or foreign law), franchise Taxes and branch profits Taxes, in each case, imposed by a
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jurisdiction (or any political subdivision thereof) as a result of the recipient being organized, having an office or being engaged in business (other than a business arising (or being deemed to arise) solely as a result of the Loan Documents or the transactions and activities contemplated by the Loan Documents) in such jurisdiction, (b) in the case of a Lender (other than an assignee pursuant to a request by the Borrower Representative under Section 11.14) or any other recipient, any Other Connection Tax or United States Federal withholding Tax that is imposed on amounts payable to or for the account of such recipient under any laws in effect at the time such recipient becomes a party hereto (or, if such recipient is an intermediary, partnership or other flow-through entity for U.S. tax purposes, the date on which the relevant beneficiary, partner or member of such recipient becomes a beneficiary, partner or member thereof, if later) (or such Lender designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to such Tax pursuant to Section 3.01(a), (c) any Tax that is attributable to such recipient’s failure to comply with Section 3.01(e) and (d) any withholding Tax that is imposed pursuant to FATCA.
“Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Loans of such Lender; provided that at any time prior to the making of the Loans, the Exposure of any Lender shall be equal to such Lender’s Commitment.
“FATCA” means current Sections 1471 through 1474 of the Code and any amended or successor version that is substantively comparable and not materially more onerous to comply with (including any Treasury regulations or other official administrative guidance promulgated thereunder), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%) charged to the Agent on such day for such Agent (or if no such rate is available, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the Federal funds effective rate); provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” means the Fee Letter, dated June 4, 2024, by and among Cirrata V, the Agent and the Arranger.
“Financial Covenant” means the covenant set forth in Section 7.09.
“Fiscal Quarter” means any fiscal quarter of a Fiscal Year.
“Fiscal Year” means any period of twelve consecutive calendar months ending on December 31.
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“Foreign Lender” means any Lender that is not a U.S. Person within the meaning of Section 7701(a)(30) of the Code.
“Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established, contributed to (regardless of whether through direct contributions or through employee withholding) or maintained outside the U.S. by an Obligor or any Subsidiary thereof primarily for the benefit of employees of any Obligor or any Subsidiary thereof residing outside of the U.S., which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made in connection with retirement, and which plan is not subject to ERISA or the Code.
“Foreign Subsidiary” means any Subsidiary that is not organized or incorporated in the United States, any State thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System and any Governmental Authority succeeding to any of its principal functions.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference to GAAP is being made, subject to the provisions of Section 1.03.
“Global Note” means a global note substantially in the form of Exhibit G.
“Governmental Authority” means any nation or government, any state, provincial, territorial or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, taxing or regulatory functions of or pertaining to government, including any board of insurance, insurance department or insurance commissioner.
“Guarantee” means the guaranty of the Guarantor set forth in Article 10.
“Guaranteed Obligations” has the meaning specified in Section 10.01.
“Guarantor” means the Parent.
“Hazardous Material” means: (a) any “hazardous substance,” as defined by CERCLA or a term of similar import in any other applicable Environmental Law; (b) any “hazardous waste,” as defined by the Resource Conservation and Recovery Act or a term of similar import in any other applicable Environmental Law; (c) petroleum and any petroleum product; or (d) any other pollutant, contaminant, chemical, material, waste or substance in any form that is subject to regulation or, as to which, liability or standards of conduct can be imposed under any Environmental Law.
“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject to the provisions of Section 1.03), to the extent applicable to the relevant financial statements.
“Immaterial Subsidiary” means any Subsidiary of the Parent that is not a Significant Subsidiary (as defined under the Securities Act) of the Parent.
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“Indebtedness” means, with respect to any Person, without duplication: (a) all indebtedness of such Person for borrowed money or in respect of loans or advances; (b) all indebtedness of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all indebtedness in respect of letters of credit, whether or not drawn, and bankers’ acceptances and letters of guaranty issued for the account or upon the application or request of such Person; (d) all Capitalized Lease Liabilities of such Person; (e) the liabilities (if any) of such Person in respect of Swap Contracts as determined by reference to the Swap Termination Value thereof; (f) all obligations of such Person to pay the deferred purchase price of property or services that are included as liabilities in accordance with GAAP (other than accrued compensation and expenses incurred and trade accounts payable in each case in the ordinary course of business) and all obligations secured by a Lien on property owned or being purchased by such Person, but only to the extent of the lesser of the obligations secured or the value of the property to which such Lien is attached (including obligations arising under conditional sales or other title retention agreements); (g) any obligations of a partnership of the kind referred to in clauses (a) through (f) above or clause (h) below in which such Person is a general partner (unless the partnership agreement in respect thereof provides that such general partners is not liable in respect of such obligations); and (h) all Contingent Obligations of such Person in connection with Indebtedness or obligations of others of the kinds referred to in clauses (a) through (g) above. Notwithstanding anything to the contrary, “Indebtedness” shall not include (1) liabilities in respect of unearned premiums on Policies, (2) obligations owed to payroll service providers in respect of advances made to or on behalf of the Parent or its Subsidiaries or to employees of the Parent or its Subsidiaries in the ordinary course of business, (3) obligations under intercompany tax and expense-sharing arrangements or (4) obligations under Policies and Reinsurance Agreements.
“Indemnified Liabilities” has the meaning specified in Section 11.05.
“Indemnified Person” has the meaning specified in Section 11.05.
“Indemnified Taxes” means all Taxes (including for the avoidance of doubt, a deduction or withholding for or on account of Tax from a payment of interest made under this Agreement imposed by the United Kingdom) other than Excluded Taxes.
“Information Restrictions” has the meaning specified in Section 6.02(c).
“Initial Lender” means UBS AG, Stamford Branch.
“Insolvency Proceeding” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, conservation, rehabilitation, receivership, dissolution, winding-up, arrangement or relief of debtors or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in any case, undertaken under any Debtor Relief Law.
“Insurance Subsidiary” has the meaning specified in Section 2.06(h).
“Interest Payment Date” means (a) with respect to any Base Rate Loan, the last day of each calendar quarter and (b) with respect to any SOFR Loan, the last day of each Interest Period applicable to the Credit Extension of which such Loan is a part; provided that if any Interest Period for a SOFR Loan exceeds three months, the date that falls three months after the beginning of such Interest Period and after each Interest Payment Date thereafter is also an Interest Payment Date (but in each case, subject to the definition of “Interest Period”).
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“Interest Period” means, with respect to any SOFR Loan, the period beginning on the date of the applicable Credit Extension and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower Representative may elect; provided that:
(i)if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the 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 the calendar month at the end of such Interest Period;
(iii)no Interest Period shall extend beyond the Maturity Date; and
(iv)no tenor that has been removed from this definition pursuant to Section 3.08(d) shall be available for specification in such election.
For purposes hereof, the date of a Credit Extension initially shall be the date on which such Credit Extension is made and thereafter shall be the effective date of the most recent continuation of such Credit Extension.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
“Interest Type” means, when used with respect to any Loan, whether the rate of interest on such Loan is determined by reference to Term SOFR or the Base Rate.
“Investment” means any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase (including purchases financed with equity) of any Capital Stock, bonds, notes, obligations, debentures or other debt securities of, or any other investment in, any Person, in each case excluding, for the avoidance of doubt, (i) intercompany tax sharing agreements and (ii) advances to current or former employees, officers, directors, members of management, managers, agents, consultants or independent contractors of the Parent or its Subsidiaries for fees, commissions, moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but shall be reduced by the amount equal to any returns in respect of such Investment received by the investor thereof in the same form as the original Investment (or in cash). Notwithstanding anything to the contrary, “Investment” shall not include Policies or Reinsurance Agreements.
“IRS” means the U.S. Internal Revenue Service or any Governmental Authority succeeding to any of its principal functions under the Code.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time.
“Lenders” has the meaning specified in the introduction to this Agreement and includes any other Person that shall have become a party hereto pursuant to an Assignment and Assumption in accordance with Section 11.07, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
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“Lending Office” means, as to any Lender, the office or offices of such Lender specified as its “Lending Office” on Schedule 11.02 or in its administrative questionnaire delivered to the Agent, or such other office or offices or office of a third party or sub-agent, as appropriate, as such Lender may from time to time notify the Borrower Representative and the Agent.
“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property, in each case, in the nature of security (including those created by, arising under or evidenced by, any conditional sale or other title retention agreement, the interest of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing), but not including the interest of a lessor under an operating lease or a licensor under a license that does not otherwise secure an obligation.
“Loan” means a loan made by a Lender to the Borrowers pursuant to Section 2.01(a).
“Loan Documents” means this Agreement and all amendments, restatements, amendment and restatements, supplements, extensions, replacements, refinancings, renewals, increases or other modifications of, and joinders to, this Agreement that are deemed pursuant to their terms to be Loan Documents for purposes hereof, all Notes and the Security Documents.
“Loan Notice” means a notice of Credit Extension substantially in the form of Exhibit C-1.
“Major Event of Default” means an Event of Default under Section 8.01(a) (solely with respect to non-payment of principal and interest; provided that (notwithstanding any grace period referred to in Section 8.01(a)) such non-payment subsists for more than 5 Business Days and other than where such non-payment is caused by administrative error or delay or technical error or delay in the transmission of funds or a market disruption event), 8.01(b) (solely with respect to any Major Representation being untrue or incorrect in any material respect when made or deemed made (or in any respect if already qualified by materiality)), 8.01(c) (solely with respect to a breach of Section 6.04, 7.01, 7.02, 7.03, 7.05, 7.06, 7.07, or 7.08 by a Borrower or a breach of Section 6.04 or 7.02 by the Parent), 8.01(f), 8.01(g) or 8.01(k).
“Major Representation” means any representation or warranty made by an Obligor pursuant to Section 5.01, 5.02(a), 5.04 or 5.18 (as each such representation or warranty relates to an Obligor only).
“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the FRB.
“Material Adverse Effect” means any event, change or condition that, in the aggregate, has had or would reasonably be expected to have (i) a material adverse effect on the consolidated business, assets, financial condition or results of operations of the Parent and its Subsidiaries, taken as a whole, (ii) a material adverse effect on the ability of the Borrowers and the Guarantor, taken as a whole, to perform their material payment obligations under the Loan Documents, or (iii) a material adverse effect on the rights and remedies of the Agent and the Lenders under the Loan Documents.
“Maturity Date” means July 31, 2025.
“Moody’s” means Moody’s Investors Service, Inc. and its successors and assigns.
“Multiemployer Plan” means a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA and subject to Title IV of ERISA to which any Obligor or any ERISA Affiliate makes, is making or is obligated to make contributions or, during the preceding six calendar years, has made, or been obligated to make, contributions.
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“NAIC” means the National Association of Insurance Commissioners or any successor thereto, or in the absence of the National Association of Insurance Commissioners or such successor, any other association, agency or other organization performing advisory, coordination or other like functions among insurance departments, insurance commissioners and similar Governmental Authorities of the various states of the United States toward the promotion of uniformity in the practices of such Governmental Authorities.
“Net Proceeds” means:
(a)with respect to any Asset Sale, an amount equal to the aggregate amount of cash and Cash Equivalents received in respect of such Asset Sale minus the sum of (i) all fees, costs and expenses (including legal fees, notarial fees, accountants’ fees, investment banking fees, survey costs and title insurance premiums) paid or reasonably estimated to be payable by the Parent, any Borrower or any Pledged Entity, as applicable, in connection with such Asset Sale or deducted from the proceeds of such Disposition, (ii) the amount of income tax or other Taxes paid or reasonably estimated to be payable in connection with such Asset Sale (after taking into account any available tax credits, exemptions or deductions and any tax sharing arrangements), (iii) the amount of all payments by the Parent, any Borrower or any Pledged Entity, as applicable, in respect of indebtedness which is secured (other than indebtedness secured on a pari passu or junior lien basis to the Loans) by the property sold pursuant to, or which is subject to a mandatory prepayment as a result of, such Asset Sale, and (iv) purchase price adjustments paid or reasonably expected to be payable in connection with such Asset Sale or Disposition and the aggregate amount of reserves taken by the Parent or any of its Subsidiaries against contingent indemnification obligations reasonably estimated to be payable in connection therewith, in each case as reasonably determined by the Parent (provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be cash proceeds of such Asset Sale occurring on the date of such reduction); and
(b)with respect to any incurrence of Indebtedness or any Equity Issuance, the proceeds thereof in the form of cash and Cash Equivalents minus the costs and expenses paid or reasonably estimated to be payable by the Parent, any Borrower or any Pledged Entity, as applicable, in connection therewith (including legal fees, notarial fees, accountants’ fees, investment banking fees, underwriting discounts and commissions, taxes and other customary fees and expenses incurred in connection therewith) or deducted from the proceeds of such incurrence.
“Non-Consenting Lender” means a Lender that does not consent to an amendment or waiver pursuant to Section 11.01 that requires the consent of all or all affected Lenders in order to become effective and as to which Lenders holding more than 50% of the Loans have consented.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note” means a promissory note in the form of Exhibit B.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Obligor arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Obligor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in
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such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Obligors under the Loan Documents include the obligation to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Obligor under any Loan Document.
“Obligors” means the Borrowers and the Guarantor.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of Treasury.
“Organization Documents” means (i) with respect to any corporation, the certificate or articles of incorporation, the bylaws, any certificate of designation or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation, (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and all applicable resolutions or consents of the governing body (or any committee thereof) of such limited liability company and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and all applicable resolutions or consents of the governing body (or any committee thereof) or in the case of clauses (i), (ii), and (iii) as they relate to any Foreign Subsidiary, the equivalent or comparable constituent documents with respect to any Foreign Subsidiary.
“Other Connection Taxes” means, with respect to the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Obligor under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or enforced any Loan Document).
“Other Taxes” means any present or future recording, stamp, filing, intangible, court or documentary Taxes that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery, performance, enforcement or registration of this Agreement or any other Loan Document.
“Parent” has the meaning specified in the introduction to this Agreement.
“Participant” has the meaning specified in Section 11.07(e).
“Participant Register” has the meaning specified in Section 11.07(e).
“Patriot Act” has the meaning specified in Section 11.17.
“Payment in Full” means all of the Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full in cash. “Paid in Full” shall have a correlative meaning.
“PBGC” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any of its principal functions under ERISA.
“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA that any Obligor or any ERISA Affiliate sponsors or maintains, or to which it makes, is making
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or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA), has made contributions, at any time during the immediately preceding five plan years.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Encumbrance” means:
(c)Liens imposed by law for Taxes that are not required to be paid pursuant to Section 6.06;
(d)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than sixty (60) days or are being contested in compliance with Section 6.06;
(e)pledges and deposits made in the ordinary course of business in compliance with, or to secure payment of obligations under, pension plans, insurance, workers’ compensation, unemployment insurance, governmental benefits and other social security laws or regulations or to secure letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in respect thereof;
(f)pledges and deposits to secure the performance of tenders, bids, trade contracts, leases, statutory obligations, surety and appeal bonds, letters of intent, purchase agreements, government contracts, expropriations, performance bonds and other obligations of a like nature, in each case in the ordinary course of business or to secure letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in respect thereof;
(g)judgment Liens in respect of judgments or securing appeal or other surety bonds relating to such judgements that do not constitute an Event of Default under clause (i) of Section 8.01;
(h)easements, defects in title, zoning, land use and building laws restrictions, rights-of-way, covenants, restrictions and similar encumbrances on real property imposed by law, recorded in the land records or arising in the ordinary course of business (including the reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Crown of any real property or any interest therein) that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Parent or any Subsidiary;
(i)any (i) interest or title of a lessor or sublessor under any lease or sublease not prohibited by this Agreement, (ii) Lien or restriction that the interest or title of such lessor or sublessor may be subject to, or (iii) subordination of the interest of the lessee or sublessee under such lease or sublease to any Lien or restriction referred to in the preceding clause (ii);
(j)Liens arising from filing UCC or UK Companies House financing statements relating solely to (i) leases not prohibited by this Agreement and (ii) consignments and/or bailments;
(k)Liens, including customary rights of set-off, revocation, refund or chargebacks under deposit or brokerage account agreements or under the Uniform Commercial Code,
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insurance law or common law or other applicable law of banks or other financial institutions where the Parent or any of its Subsidiaries maintains accounts) in the ordinary course of business;
(l)licenses (with respect to intellectual property and other property), leases or subleases granted to third parties and not adversely interfering in any material respect with the ordinary conduct of the business of the Parent or any of its Subsidiaries;
(m)any Lien consisting of the right reserved to or vested in any Governmental Authority by any statutory provision or by the terms of any lease, license, agreement, franchise, grant or permit of any of the Obligors or their Subsidiaries, to terminate any such lease, agreement, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof; and
(n)Liens of attorneys retained by the Parent or any of its Subsidiaries on a contingency fee basis;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money.
“Permitted Swap Obligations” means all obligations (contingent or otherwise) of Parent or any Subsidiary existing or arising under Swap Contracts; provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments or assets held by such Person, or changes in the value of securities issued by such Person in conjunction with a securities repurchase program not otherwise prohibited hereunder, and not for purposes of speculation or taking a “market view”.
“Person” means an individual, partnership, corporation, limited liability company, unlimited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority or other entity of whatever nature.
“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) subject to ERISA that any Obligor or any ERISA Affiliate sponsors or maintains or to which any Obligor or any ERISA Affiliate makes, is making or is obligated to make, contributions, and includes any Pension Plan.
“Platform” has the meaning specified in Section 6.02.
“Pledged Collateral” means all property pledged or granted as collateral pursuant to the U.S. Pledge Agreement and the UK Share Pledge.
“Pledged Entity” means (a) Everspan and (b) the Company.
“Policies” means all insurance policies (including mortgage insurance, life insurance and long-term care policies), financial guarantees, separate account liabilities, annuity contracts, guaranteed interest contracts and funding agreements (including riders to any such policies or contracts, certificates issued with respect to group life insurance or annuity contracts and any insurance contracts issued in connection with retirement plans or arrangements) and assumption certificates issued or to be issued (or filed pending current review by applicable Governmental Authorities) by any Insurance Company.
“Prime Rate” means the rate of interest, if any, quoted for such day in The Wall Street Journal (or such other publication of national standing reasonably agreed by the Borrower Representative and the Agent) as the “U.S. Prime Rate”.
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“Pro Rata Share” means, with respect to any Lender, the percentage obtained by dividing (a) the Exposure of that Lender by (b) the aggregate Exposure of all Lenders.
“Process Agent” has the meaning specified in Section 11.15(e).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“Purchase Money Debt” means Indebtedness incurred by a Person in connection with the purchase, lease, completion, construction, repair, replacement, improvement or installation of assets by such Person, in which assets the seller, lessor or financier thereof has taken or retained a Lien; provided that (x) any such Lien attaches to such assets concurrently with or within 270 days after the purchase thereof by such Person and (y) at the time of incurrence of such Indebtedness, the aggregate principal amount of such Indebtedness shall not exceed the costs of the assets so purchased plus fees and expenses reasonably related thereto.
“Refinance” means, with respect to any Indebtedness, to refinance, refund, renew, replace, exchange or extend such Indebtedness. The term “Refinancing” shall have a correlative meaning.
“Refinancing Indebtedness” means with respect to Indebtedness (“Refinanced Debt”), any Refinancing of such Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt plus an amount equal to unpaid accrued interest and premium thereon (including any make-whole or other prepayment premium) plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such Refinancing plus an amount equal to any existing commitments unutilized thereunder plus any amount otherwise permitted to be incurred pursuant to Section 7.01 (it being understood that any such Indebtedness otherwise permitted to be incurred shall constitute Indebtedness under the relevant provision of Section 7.01 pursuant to which it shall be incurred and not Refinancing Indebtedness), (b) such Refinancing Indebtedness shall have a final maturity date equal to or later than the final maturity date of, and a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Refinanced Debt, (c) such Refinancing Indebtedness shall be incurred (or guaranteed only) by (i) the Person or Persons who are the obligors on the Refinanced Debt and (ii) any Person that would otherwise be permitted to incur such Indebtedness pursuant to Section 7.01 and (d) (i) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with (or in any event within 90 days of) the incurrence of such Refinancing Indebtedness or (ii) proceeds from such Refinancing Indebtedness in an amount sufficient to repay such Refinanced Debt, together with accrued interest, fees and premiums (if any) in connection therewith, shall have been received and held for such purpose.
“Register” has the meaning specified in Section 11.07(d).
“Regulated Insurance Company” has the meaning specified in Section 2.06(h).
“Reinsurance Agreements” means any agreement, contract, treaty, certificate or other arrangement by which any Insurance Subsidiary agrees to cede to, or assume from, another insurer all or part of the liability assumed or assets held by it under one or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties, certificates or similar arrangements. Reinsurance Agreements shall include, but not be limited to, any agreement, contract, treaty, certificate or other arrangement that is treated as such by the applicable Department.
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“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, members, representatives, injection, migration or leaching into or through the Environment.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
“Required Lenders” means, as of any date of determination, one or more Lenders having or holding Exposure constituting more than 50% of the aggregate Exposure of all Lenders; provided that the amount of Exposure shall be determined with respect to any Defaulting Lender by disregarding the Exposure of such Defaulting Lender.
“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or legally binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, director of treasury, treasurer or assistant treasurer of an Obligor. Any document delivered under any Loan Document that is signed by a Responsible Officer of an Obligor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Obligor and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Obligor. Unless otherwise specified, “Responsible Officer” means a Responsible Officer of the Borrower Representative.
“Restricted Payments” has the meaning set forth in Section 7.06.
“S&P” means Standard & Poor’s Ratings Group, Inc. and its successors and assigns.
“Sanctioned Country” means a country or territory which is at any time subject to comprehensive Sanctions broadly prohibiting all dealings with that country or territory.
“Sanctioned Person” means any Person that is, or is owned 50% or more (individually or in the aggregate, directly or indirectly) or controlled by Persons that are: (a) the subject or target of Sanctions or (b) located, organized or resident in a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered, or enforced by the United States government (including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), the United Nations Security Council, the European Union, the United Kingdom (including His Majesty’s Treasury), or the Canadian government
“SAP” means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner (or other similar authority) in the domiciliary jurisdiction of such Insurance Subsidiary for the preparation of annual statutory financial statements and
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other financial reports by insurance companies of the same type as such Insurance Subsidiary that are applicable to the circumstances as of the date of filing of such statement or report.
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Secured Obligations” has the meaning set forth in the U.S. Pledge Agreement.
“Secured Parties” has the meaning set forth in the U.S. Pledge Agreement.
“Securities Act” means the Securities Act of 1933 and the regulations promulgated thereunder.
“Security Documents” means the U.S. Pledge Agreement, the UK Share Pledge and each other security agreement, instrument or document executed and delivered pursuant thereto or pursuant to the Collateral and Guarantee Requirement to secure any of the Obligations.
“Sellers” has the meaning specified in the recitals to this Agreement.
“Single Employer Pension Plan” means a Pension Plan, other than a Multiemployer Plan.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“Specified Stock Buybacks” has the meaning set forth in Section 7.06(g).
“Spot Rate” means, on any date with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth on such date on the 11:00 am Bloomberg FX Fixing Page for such currency (or any successor page thereto). In the event that such rate does not appear on such page or any successor page, the Spot Rate shall be the rate determined by the Borrowers to be the rate quoted by the person acting in such capacity as the spot rate for the exchange of one currency into another currency for purposes of the Parent’s financial statements on the date two Business Days prior to the date as of which the foreign exchange computation is made or if such rate cannot be computed as of such date such other date as the Agent and the Borrowers shall reasonably determine is appropriate under the circumstances.
“Subsidiary” of a Person means any corporation, partnership, limited liability company, unlimited liability company, limited liability partnership, joint venture, trust, association or other unincorporated organization of which or in which such Person and such Person’s Subsidiaries own directly or indirectly more than 50% of (a) the combined voting power of all classes of stock having general voting power under ordinary circumstances to elect a majority of the board of directors, if it is a corporation, (b) the voting or managing interests (which shall mean the general partner in the case of a partnership), if it is a partnership, joint venture or similar entity, (c) the beneficial interest, if it is a trust, association or other unincorporated organization or (d) the membership interest, if it is a limited liability company. Unless otherwise specified, “Subsidiary” means a Subsidiary of the Parent.
“Swap Contract” means any agreement relating to any transaction (whether or not arising under a master agreement) that is a rate swap, basis swap, forward rate transaction, commodity swap,
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commodity option, equity or equity index swap or option, bond, note or bill option, interest rate option, futures contract, forward foreign exchange transaction, cap, collar or floor transaction, currency swap, cross-currency rate swap, swaption, currency option, credit derivative transaction, replication transaction or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and any master agreement relating to or governing any or all of the foregoing.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined by the Borrowers based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender).
“Tax Status Certificate” has the meaning set forth in Section 3.01(e).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Facility” means the Loans and the Commitments hereunder.
“Term SOFR” means,
(a)    for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b)    for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day;
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provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than 0.00%, then Term SOFR shall be deemed to be 0.00%
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Threshold Amount” means $10,000,000.
“Transaction Liens” means the Liens granted by the Obligors under the Security Documents.
“Transactions” means the (a) execution and delivery of the Loan Documents to be entered into on the Closing Date, (b) borrowing of the Loans hereunder on the Closing Date, (c) consummation of the Beat Acquisition and the other related transactions contemplated by the Acquisition Agreement, (d) consummation of the Cash Contributions and (e) payment of fees and expenses incurred in connection with the foregoing.
“UK GAAP” means generally accepted accounting principles in the United Kingdom as in effect from time to time, subject to the provisions of Section 1.03.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Share Pledge” means the Equitable Charge over Shares, dated as of August 1, 2024, among Cirrata V, Cirrata UK and the Agent.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 430 of the Code for the applicable plan year.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“United States” and “U.S.” each means the United States of America.
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“U.S. Government Securities Business Day” means 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. Pledge Agreement” means the Pledge Agreement, dated as of August 1, 2024, by and between the Parent and the Agent.
“Voting Stock” of any Person means Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interest has voting power by reason of any contingency) to vote in the election of the board of directors or similar governing body of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly-Owned Subsidiary” means any Person in which all of the Capital Stock (other than directors’ and national citizen qualifying shares or similar de minimis holdings by another Person, in each case, as required by law) is owned, beneficially and of record, by the Parent, or by one or more of the other Wholly-Owned Subsidiaries, or both.
“Write-Down and Conversion Powers” shall mean, (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 Interpretive Provisions.
(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(c)(i)    The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.
(i)The term “including” is not limiting and means “including without limitation.”
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(ii)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”
(d)Unless otherwise expressly provided herein or the context requires otherwise, (i) any definition of or reference to any document (including this Agreement and the other Loan Documents), shall be construed as referring to such document as from time to time amended, restated, amended and restated, supplemented, extended, replaced, refinanced, renewed, assigned, assumed, increased or otherwise modified (subject to any restrictions on such amendments, restatements, amendment and restatements, supplements, extensions, replacements, refinancings, renewals, increases or other modifications set forth herein), (ii) any definition of or references to any statute, rule or regulation are to be construed as including all statutes, rules, regulations, rulings, statutory and regulatory provisions or official interpretations promulgated or issued thereunder, consolidating, amending, or replacing, supplementing, interpreting or otherwise modifying (including by succession of comparable successor laws) the statute, rule or regulation, (iii) any reference herein to a Person shall be construed to include such Person’s permitted successors and assigns (subject to any restrictions set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all relevant functions thereof, and (iv) the words “property” and “assets” 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.
(e)The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
(f)This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.
(g)This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the Agent, the Borrowers and the other parties, and are the products of all parties. Accordingly, they shall not be construed against any party merely because of such party’s involvement in their preparation.
Section 1.3.Accounting Principles.
(a)Unless the context otherwise clearly requires (including as set forth in the definition of Capitalized Lease Obligations), all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, SAP or UK GAAP, as applicable, as in effect from time to time. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 Financial Instruments and FASB ASC 470-20 Debt with Conversion and Other Options on financial liabilities shall be disregarded.
(b)[Reserved].
(c)If, at any time after the date of this Agreement, any change is made to UK GAAP, GAAP or SAP, the interpretation thereof, or the Parent or the Borrowers’ accounting practices, in any case that would affect the determination of compliance with the covenants set forth in this Agreement, the Borrower Representative shall notify the Agent of the change and, at the option of the Borrower Representative or upon the written request of the Required Lenders, the Borrowers and the Agent shall
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negotiate in good faith to amend such covenant, subject to the approval of the Required Lenders but without the requirement of any amendment fee, to eliminate or adjust for the effect of the implementation of such change in UK GAAP, GAAP, SAP or accounting practices; provided that, until such time that such amendment has become effective or such notice has been withdrawn by the Borrower Representative, such provision of UK GAAP, GAAP, SAP or such accounting policy shall be interpreted without giving effect to any such change, interpretation or accounting practice, other than with respect to preparation of financial statements pursuant to Section 6.01(a) and (b).
(d)If the Borrower Representative notifies the Agent that it (or the Parent or its applicable parent company) is required to report under IFRS or has elected to do so through an early adoption policy or otherwise, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided that after such conversion, the Borrower Representative cannot elect to report under GAAP).
Section 1.4.Times of Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.5.Timing of Payment or Performance; Compliance with this Agreement.
(a)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) or performance shall extend to the immediately succeeding Business Day.
(b)For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires a calculation of any financial test, such financial test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(c)For purposes of determining compliance at any time with Sections 7.01, 7.02, 7.03, 7.04, 7.06, 7.07, 7.08 and 7.10, in the event that any Indebtedness, Liens, Disposition, Affiliate transaction, merger, consolidation, amalgamation, or other transactions restricted by Section 7.05, Restricted Payment, Investment, Acquisition, payment of Indebtedness or contractual restriction, as applicable, meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of Section 7.01, 7.02, 7.03, 7.04, 7.06, 7.07, 7.08 or 7.10, as applicable, the Borrowers, in their sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) under one or more of such clauses of such Section and will only be required to include the amount and type of such transaction (or portion thereof) in any one category. It is understood and agreed that any Indebtedness, Lien, Disposition, Affiliate transaction, merger, consolidation, amalgamation, or other transactions restricted by Section 7.05, Restricted Payment, Investment, Acquisition, payment of Indebtedness or contractual restriction need not be permitted solely by reference to one clause of Section 7.01, 7.02, 7.03, 7.04, 7.06, 7.07, 7.08 or 7.10, respectively, but may instead be permitted in part under any combination thereof.
Section 1.6.Certifications.
All certifications to be made hereunder by an officer or representative of any Obligor shall be made by such a Person in his or her capacity solely as an officer or a representative of such Obligor, on such Obligor’s behalf and not in such Person’s individual capacity
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Section 1.7.Currency.
Notwithstanding anything to the contrary in this Agreement, for purposes of any determination under Article 6, Article 7 (other than the Financial Covenant) or Article 8 with respect to the amount of any Indebtedness, Liens, Disposition, Affiliate transaction, merger, consolidation, amalgamation, Restricted Payment, Investment, Acquisition, payment of Indebtedness or contractual restriction or other transaction, event or circumstance, or any determination under any other provision of this Agreement, (any of the foregoing, a “specified transaction”) in a currency other than Dollars, (i) the Dollar Equivalent amount of a specified transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Agent and the Borrowers) for such currency, as in effect at 11:00 a.m. (New York time) on the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date of the declaration thereof and, in the case of the incurrence of Indebtedness, shall be deemed to be on the date first committed); provided, that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than Dollar, and such refinancing or replacement 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 or replacement, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest and premiums (including tender premiums) thereon plus other reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section 7.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in the rates of currency exchange occurring after the time of any specified transaction so long as such specified transaction was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i).
Section 1.8.Appointment of Borrower Representative.
Each Obligor hereby irrevocably designates and appoints Cirrata V as the Borrower Representative, to serve as its representative and agent hereunder to act on its behalf for the purposes of issuing Loan Notices and certificates, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants and amendments to the Loan Documents) on behalf of any Obligor or Obligors under the Loan Documents, in each case, without notice to any Borrower or any other Obligor. Cirrata V hereby accepts such appointment as Borrower Representative. The Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Borrower Representative as a notice or communication from all Obligors, and may give any notice or communication required or permitted to be given to any Obligor or Obligors hereunder to the Borrower Representative on behalf of such Obligor or Obligors. Each Obligor agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Borrower Representative shall be deemed for all purposes to have been made by such Obligor and shall be binding upon and enforceable against such Obligor to the same extent as if the same had been made directly by such Obligor.
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Article 2
The Credits
Section 2.1.Term Loans.
(a)Loan Commitments. Subject to the terms and conditions hereof, each Lender with a Commitment severally agrees to make, on the Closing Date, a Loan to one or more of the Borrowers in an amount equal to such Lender’s Commitment.
The Borrowers may make only one borrowing under the Commitments, which shall be on the Closing Date. Amounts borrowed under this Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.06, all amounts owed hereunder with respect to the Loans shall be paid in full no later than the Maturity Date. Each Commitment shall terminate immediately and without further action on the Closing Date, after giving effect to the funding of such Commitment on such date.
(b)Borrowing Mechanics.
(i)The Borrower Representative shall deliver to the Agent a fully executed Loan Notice no later than (x) 3:00 p.m. on the date that is one (1) Business Day prior to the Closing Date with respect to Base Rate Loans and (y) 3:00 p.m. on the date that is one (1) Business Day prior to the Closing Date with respect to SOFR Loans (or such shorter period as may be acceptable to the Agent) which Loan Notice may be conditioned upon the substantially simultaneous consummation of the Beat Acquisition. Promptly upon receipt by the Agent of such Loan Notice, the Agent shall notify each Lender of the proposed Credit Extension.
(ii)Each Lender shall make its Loan available to the Agent not later than 10:00 a.m. on the Closing Date, by wire transfer of same day funds in Dollars, at the Agent’s Office designated by the Agent. Upon satisfaction or waiver of the conditions precedent specified herein, the Agent shall make the proceeds of the Loans available to the Borrowers on the Closing Date not later than 3:00 p.m. by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by the Agent from Lenders to be credited to the account of the applicable Borrower at the Agent’s Office or to such other account or accounts (i.e., such Loan proceeds may be allocated across several accounts) as may be designated in writing to the Agent by the Borrower Representative.
Section 2.2.Pro Rata Shares.
All Loans shall be made by the 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 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.
Section 2.3.Conversion and Continuation of Loans.
(a)Except as otherwise provided herein, (i) each conversion of Loans from one Interest Type to the other, and each continuation of SOFR Loans shall be made upon the Borrower’s irrevocable written notice to the Agent in the form of a Conversion/Continuation Notice, appropriately completed and signed by a Responsible Officer of the Borrower Representative, (ii) such Conversion/Continuation Notice must be received by the Agent not later than 11:00 a.m. three (3) Business Days prior to the requested date of any conversion to or continuation of SOFR Loans and (iii) a SOFR Loan may be continued or converted
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only on the last day of an Interest Period for such SOFR Loan. The Agent shall determine the interest rate that shall apply to any converted or continued SOFR Loans pursuant to Section 2.07(b).
(b)Each Conversion/Continuation Notice shall specify (i) whether the Borrower Representative is requesting a conversion of Loans from one Interest Type to the other, or a continuation of SOFR Loans, (ii) the requested date of the conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be converted or continued, (iv) the Interest Type of Loans to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto (each such Interest Period shall comply with the provisions of the definition of “Interest Period”).
(c)Notwithstanding any contrary provision hereof, if (i) an Event of Default of the type described in Section 8.01(a), (f) or (g) has occurred and is continuing, unless the Required Lenders otherwise consent or (ii) any other Event of Default has occurred and is continuing and the Required Lenders have requested, each Loan will be converted into a Base Rate Loan at the end of the Interest Period applicable thereto.
Section 2.4.Notes; Loan Accounts.
(a)Each Loan made by each Lender shall be evidenced by one or more loan accounts or records maintained by such Lender and by the Agent in the ordinary course of business. The loan accounts or records maintained by the Agent and each Lender shall be prima facie evidence in the absence of manifest error of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Loans. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. To the extent any such accounts are inconsistent with the Register, the Register shall govern absent manifest error.
(b)Upon the request of any Lender made through the Agent, instead of or in addition to loan accounts, the Loans made by each Lender may be evidenced by one or more Notes. Each Lender shall endorse on the schedules annexed to its Note the date, amount and maturity of each Loan deemed made by it and the amount of each payment of principal made by the Borrowers with respect thereto. Each such Lender is irrevocably authorized by the Borrowers to so endorse its Note and each Lender’s record shall be conclusive absent manifest error; provided that the failure of a Lender to make, or an error in making, a notation thereon with respect to any Loan shall not limit or otherwise affect the obligations of the Borrowers hereunder or under any such Note to such Lender.
Section 2.5.Repayment of Loans.
The Loans, together with all other amounts owed hereunder with respect thereto, shall be Paid In Full no later than the Maturity Date.
Section 2.6.Optional and Mandatory Prepayments.
(a)Optional Prepayments. The Borrowers will have the right at any time to prepay any Credit Extension in whole or in part, in minimum amounts of $1,000,000 or any multiple of $500,000 in excess thereof, without premium or penalty except as set forth in Section 3.04, if and as applicable.
(b)[Reserved].
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(c)[Reserved].
(d)Mandatory Prepayments. The Borrowers shall be required to make mandatory prepayments as set forth in subclauses (i), (ii) and (iii).
(i)Indebtedness.
(A)Within one Business Day after any Net Proceeds are received by the Parent, any Borrower or Everspan in respect of the incurrence of any Indebtedness for borrowed money (other than any Excluded Debt) by the Parent, any Borrower or Everspan, in any case in an aggregate principal amount in excess of $2,500,000, the Borrowers shall prepay Loans in an aggregate amount equal to such Net Proceeds so received.
(B)Within one Business Day after any Net Proceeds are received by the Company in respect of the incurrence by the Company of (w) any indebtedness for borrowed money, (x) Capitalized Lease Liabilities, (y) Purchase Money Debt or (z) indebtedness evidenced by bonds, debentures, notes or similar instruments, in each case incurred by the Company in an aggregate principal amount in excess of £20,000,000 (other than that certain £4,000,000 Overdraft Facility dated as of February 20, 2020 by and among the Company and Barclays Bank PLC), the Borrowers shall prepay 100% of outstanding Loans; provided that the Borrowers shall not be required to so prepay the outstanding Loans if the Company incurs any of the foregoing types of indebtedness owing to the Parent or its Subsidiaries so long as, on or prior to the date prepayment is due, the holder of such Indebtedness has granted to the Agent, for the benefit of the Lenders, a perfected first-priority security interest in such Indebtedness as collateral security for the Payment in Full of the Obligations.
(ii)Asset Sales. Within five Business Days after any Net Proceeds in excess of $5,000,000 are received by the Parent, any Borrower or Everspan in respect of any Asset Sale, the Borrowers shall prepay the Loans in an aggregate amount equal to such Net Proceeds so received.
(iii)Equity Issuances. Within one Business Day after any Net Proceeds are received by the Parent, any Borrower or Everspan in respect of any Equity Issuance, the Borrowers shall prepay the Loans in an aggregate amount equal to such Net Proceeds so received.
(e)Application of Prepayments. Any prepayment of any Loan pursuant to Section 2.06(a) and Section 2.06(d) shall be allocated among the Loans on a pro rata basis.
(f)Notice of Prepayments. The Borrower Representative shall notify the Agent in writing of any prepayment of any Loans pursuant to Section 2.06(a) and Section 2.06(d), (i) in the case of a SOFR Loan, not later than three (3) Business Days before the date of prepayment and (ii) in the case of a Base Rate Loan, not later than 11:00 a.m. on the prepayment date. Each such notice shall be irrevocable (other than to the extent provided in connection with other transactions including the refinancing of any of the Obligations) and shall specify the prepayment date, the principal amount of each Credit Extension or portion thereof to be prepaid.
(g)Application of Prepayments of Loans to Base Rate Loans and SOFR Loans. Any prepayment of Loans shall be applied first to Base Rate Loans to the full extent thereof before application to SOFR Loans, in each case in a manner which minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 3.04.
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(h)Notwithstanding any other provisions of this Section 2.06 to the contrary, any prepayment of any Loans required to be made pursuant to Section 2.06(d) shall not be required (i) in the case of any such Net Proceeds funded into escrow, until such Net Proceeds are released from escrow and (ii) if such prepayment is prohibited under applicable law or regulation (including regulations of any insurance commission or similar Governmental Authority located in the jurisdiction in which any of the Parent or any of its Subsidiaries that is authorized or admitted to carry on or otherwise transact in selling, issuing or underwriting insurance or reinsurance (each such subsidiary, a “Regulated Insurance Company” and, together with their respective subsidiaries, collectively, the “Insurance Subsidiaries” and each an “Insurance Subsidiary”) is domiciled, regarding financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries); provided that, to the extent applicable, the Parent, the Borrowers and Everspan have used commercially reasonable efforts to obtain approvals from any applicable insurance commission or similar governmental authority to upstream the Net Proceeds subject to mandatory prepayment and such prepayment shall be excused only for so long as such approvals are pending or have been denied. The non-application of any such Net Proceeds as a result of the foregoing provisions will not constitute a Default or an Event of Default and such amounts, in the case of the events described in clause (ii) of the preceding sentence only, shall be available for working capital purposes of the Parent and its Subsidiaries.
Section 2.7.Interest.
(a)Except as otherwise set forth herein, the Loans shall bear interest on the unpaid principal amount thereof from the date made until the date of repayment (whether by acceleration or otherwise) thereof as follows:
(i)if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(ii)if a SOFR Loan, at Term SOFR plus the Applicable Margin.
(b)The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any SOFR Loan, shall be selected by the Borrower Representative and notified to the Agent and Lenders pursuant to the applicable Loan Notice or Conversion/Continuation Notice, as the case may be.
(c)In connection with SOFR Loans there shall be no more than five (5) Interest Periods outstanding at any time. In the event the Borrower Representative fails to specify between a Base Rate Loan or a SOFR Loan in the applicable Loan Notice or Conversion/Continuation Notice, such Loan shall be made as or, if outstanding as a SOFR Loan will be automatically continued on the last day of the then-current Interest Period for such Loan as, a SOFR Loan (or if outstanding as a Base Rate Loan will remain as a Base Rate Loan). In the event the Borrower Representative fails to specify an Interest Period for any SOFR Loan in the applicable Loan Notice or Conversion/Continuation Notice (or fails to deliver a Conversion/Continuation Notice within the time limits provided in Section 2.03(a)), the Borrower Representative shall be deemed to have selected an Interest Period of one month. As soon as practicable after 10:00 a.m. on each Interest Rate Determination Date, the 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 SOFR 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 Representative and each Lender. At any time that Base Rate Loans are outstanding, the Agent shall notify the Borrower Representative and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the public announcement of such change.
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(d)[Reserved].
(e)[Reserved].
(f)Notwithstanding the foregoing, upon the occurrence of any Event of Default pursuant to Section 8.01(a), for so long as such Event of Default shall be continuing, all overdue principal and interest payable on each Loan shall, without further notice, bear interest, after as well as before judgment to the extent permitted by law, at a rate per annum equal to 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding subsections of this Section. In addition, if any fee or other amount (other than principal or interest on any Loan) payable by the Borrowers pursuant to any Loan Document is not paid when due, whether upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment to the extent permitted by law, at a rate per annum equal to 2.00% plus the rate otherwise applicable to Base Rate Loans as provided in the preceding subsections of this Section; provided that no amount of interest in excess of that provided for under paragraph (a) of this Section shall accrue or be payable pursuant to this Section 2.07(f) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(g)Interest on each Loan shall be paid in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.07(f) shall be payable on demand of the Agent, (ii) upon any repayment or prepayment of any Loan, interest accrued on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) upon any conversion of a SOFR Loan before the end of the current Interest Period therefor, interest accrued on such Loan shall be payable on the effective date of such conversion.
(h)Anything herein to the contrary notwithstanding, the obligations of the Borrowers to any Lender hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, and in such event the Borrowers shall pay such Lender interest at the highest rate permitted by applicable law until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrowers shall pay to the Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the highest rate of interest that may be lawfully contracted for, charged or received had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Borrowers to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
Section 2.8.Fees.
(a)The Borrowers shall pay the following duration fees to the Agent, for the account of each Lender, on the following dates:
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(i)on February 1, 2025, an amount equal to 1.00% of the aggregate principal amount of such Lender’s Loans outstanding on such date; and
(ii)on May 1, 2025, an amount equal to 1.00% of the aggregate principal amount of such Lender’s Loans outstanding on such date.
(b)In addition to any of the foregoing fees, the Borrowers agree to pay (or cause to be paid) to the Agent (or the other Persons entitled thereto) such other fees in the amounts and at the times separately agreed upon in writing, including those set forth in the Fee Letter.
(c)All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Agent (or the other Persons entitled thereto). Fees owing and paid hereunder shall be fully earned when paid and shall not be refundable under any circumstances.
Section 2.9.Computation of Fees and Interest.
(a)All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year). Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.
(b)Each determination of an interest rate by the Agent shall be conclusive and binding on the Borrowers and the Lenders in the absence of manifest error. The Agent will, at the request of the Borrower Representative or any Lender, deliver to the Borrower Representative or such Lender, as the case may be, a statement showing the quotations used by the Agent in determining any interest rate and the resulting interest rate.
Section 2.10.Payments Generally.
(a)Except as otherwise expressly provided in any Loan Document, all payments to be made by the Borrowers under the Loan Documents shall be made without condition or deduction for any defense, set-off, recoupment or counterclaim. Except as otherwise expressly provided in any Loan Document, all payments to be made by the Borrowers under any Loan Document shall be made to the Agent for the account of the Lenders at the Agent’s Office, and shall be made in dollars and in immediately available funds, no later than 3:00 p.m. on the date specified in such Loan Document. The Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received. Any payment received by the Agent later than 3:00 p.m. shall be deemed to have been received on the following Business Day for purposes of any applicable interest or fee calculation.
(b)Unless any Borrower or any Lender has notified the Agent, prior to the date any payment is required to be made by it to the Agent hereunder, that the Borrowers or such Lender, as the case may be, will not make such payment, the Agent may assume that the Borrowers or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Agent in immediately available funds, then:
(i)if the Borrowers failed to make such payment, each Lender shall forthwith on demand repay to the Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from
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and including the date such amount was made available by the Agent to such Lender to the date such amount is repaid to the Agent in immediately available funds at the Federal Funds Effective Rate from time to time in effect; and
(ii)if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Agent to the Borrowers to the date such amount is recovered by the Agent (the “Compensation Period”) at the customary rate set by the Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. If such Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan included in the applicable Credit Extension. If such Lender does not pay such amount forthwith upon the Agent’s demand therefor, the Agent may make a demand therefor upon the Borrower Representative, and the Borrowers shall pay such amount to the Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any rights that the Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Agent to any Lender or Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(c)If any Lender makes available to the Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Borrowers by the Agent because the conditions to the extension of Loans set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.
(e)Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Section 2.11.Sharing of Payments by Lenders.
(a)If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment (i) on account of any Obligations due and payable hereunder and under the other Loan Documents at such time resulting in such Lender receiving payment in excess of its ratable share (calculated according to the proportion of (x) the amount of such Obligations due and payable to such Lender at such time to (y) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (ii) of or on account of any of Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (calculated according to the proportion of (x) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (y) the aggregate amount of Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on
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account of Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time, then in each case, such Lender shall (A) notify the Agent of such fact, and (B) purchase (for cash at face value) participations in the Obligations of the other Lenders due and payable or owing, as the case may be, or make such other adjustments as shall be equitable, so that the benefit of such excess payments shall be shared by all such Lenders; provided that:
(i)if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)the provisions of this Section 2.11(a) shall not be construed to apply to (I) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or (II) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant.
(b)Each Obligor consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Obligor rights of setoff and counterclaim (subject to Section 11.09) with respect to such participation as fully as if such Lender were a direct creditor of such Obligor in the amount of such participation.
Section 2.12.Defaulting Lenders.
(a)Defaulting Lender Waterfall. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law, any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Agent from a Defaulting Lender pursuant to Section 11.09 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrower Representative may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fourth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans, and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the applicable Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.12(a) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b)Defaulting Lender Cure. If the Borrowers and the Agent agree in writing that a Lender is no longer a Defaulting Lender, the Agent will so notify the parties hereto, whereupon, as of the effective
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date specified in such notice, and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the applicable Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Article 3
Taxes, Yield Protection And Illegality
Section 3.1.Taxes.
(a)Payments Free of Indemnified Taxes and Other Taxes. Any and all payments by or on account of any obligation of any Obligor hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct or withhold any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the amount so payable by the applicable Obligor shall be increased as necessary so that after all such deductions or withholdings have been made (including deductions applicable to additional amounts payable under this Section) the Agent or Lender, as the case may be, receives an amount equal to the amount it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions or withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.
(b)Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above, the Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c)Indemnification by the Borrowers. Without duplication of Section 3.01(a), the Borrowers shall indemnify the Agent and each Lender, on or before the date that is thirty (30) days after written demand therefor, for the full amount of any Indemnified Taxes in respect of payments by or on account of any obligation or any Obligor under any Loan Document or Other Taxes (including Indemnified Taxes or Other Taxes imposed on or attributable to amounts payable under this Section) that are imposed on or payable by the Agent or such Lender, as the case may be, and reasonable expenses arising therefrom, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth the amount of such payment or liability delivered to the Borrower Representative by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If the Borrowers reasonably believe that there is an appropriate basis to pursue a refund of any Indemnified Tax or Other Tax indemnified by the Borrowers under this Section 3.01(c), or for which any Obligor has paid additional amounts under Section 3.01, the Agent or the Lender (as applicable) shall, upon the Borrower Representative’s written request and at the Borrowers’ expense, pursue such refund; provided that the Agent or any Lender shall not be obligated to pursue any such refund if the Agent or such Lender reasonably determines in good faith that it would be materially disadvantaged or prejudiced, or subject to any out-of-pocket unreimbursed cost or expense, by pursuing such refund. Any refund described in the preceding sentence that is received by the Agent or any Lender shall be payable to the Borrowers to the extent provided in Section 3.01(f).
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(d)Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Obligor to a Governmental Authority, the Borrower Representative shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Agent.
(e)Status of Lenders.
(i)Each Lender shall deliver to the Borrower Representative and to the Agent, and the Agent shall deliver to the Borrower Representative, whenever reasonably requested by the Borrower Representative or the Agent, such properly completed and executed documentation prescribed by applicable laws and such other reasonably requested information as will permit the Borrowers or the Agent, as the case may be, (A) to determine whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) to determine, if applicable, the required rate of withholding or deduction and (C) to establish the Agent’s or such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to the Agent or such Lender pursuant to any Loan Document or otherwise to establish the Agent’s or such Lender’s status for withholding tax purposes in an applicable jurisdiction. If any form, certification or other documentation provided by the Agent or a Lender pursuant to this Section 3.01(e) (including any of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect, the Agent or such Lender, as the case may be, shall promptly notify the Borrower Representative and the Agent in writing and shall promptly update or otherwise correct the affected documentation or promptly notify the Borrower Representative and the Agent in writing that the Agent or such Lender is not legally eligible to do so. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B), (ii)(D) and (ii)(E) below) shall not be required if in the Agent’s or Lender’s reasonable good faith judgment such completion, execution or submission would subject the Agent or such Lender to any out-of-pocket unreimbursed cost or expense or would materially prejudice the legal or commercial position of the Agent or such Lender.
(ii)Without limiting the generality of the foregoing,
(A)any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower Representative and the Agent duly completed and executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Borrower Representative or the Agent (in such number of signed originals as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon request of the Borrower Representative or the Agent) as will enable the Borrowers or the Agent, as the case may be, to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements;
(B)each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments hereunder or under any other Loan Document shall deliver to the Borrower Representative and the Agent (in such number of signed originals as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower
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Representative or the Agent), duly completed and executed originals of whichever of the following is applicable:
(1)IRS Form W-8BEN-E (or any successor thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(2)IRS Form W-8ECI (or any successor thereto) claiming that payments under this Agreement or any other Loan Documents (as applicable) constitute income that is effectively connected with such Foreign Lender’s conduct of a trade or business in the United States,
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 881(c) of the Code (the “Portfolio Interest Exemption”), (x) a certificate, substantially in the form of Exhibit F-1, F-2, F-3 or F-4, as applicable (a “Tax Status Certificate”), to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3) (A) of the Code, (B) a “10 percent shareholder” of the Borrowers or Parent, within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no payments to be received are effectively connected with a U.S. trade or business and (y) IRS Form W-8BEN-E (or any successor thereto), or
(4)where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner (e.g., where such Lender has sold a participation), IRS Form W- 8IMY (or any successor thereto) and all required supporting documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial owner(s); provided that, if the Foreign Lender is a partnership and not a participating Lender, the Tax Status Certificate from the beneficial owner(s) may be provided by the Foreign Lender on behalf of the beneficial owner(s));
(C)any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrowers or the Agent to determine the withholding or deduction required to be made;
(D)each Lender shall deliver to the Borrower Representative and the Agent (in such number of duly completed and executed originals as shall be requested by the recipient), at such time or times reasonably requested by the Borrower Representative or the Agent, such documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Agent (1) to comply with the Borrowers’ and/or the Agent’s obligations under FATCA, (2) to determine that such Lender has complied with such Lender’s obligations under FATCA and/or (3) to determine the amount to deduct and withhold from any payment under this Agreement or the other Loan Documents pursuant to FATCA. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement;
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(E)the Agent shall deliver to the Borrower Representative on or prior to the date on which it becomes the Agent under this Agreement (and from time to time thereafter upon request of the Borrower Representative):
(1)duly completed and executed originals of IRS Form W-8ECI with respect to any amounts payable to the Agent for its own account, and
(2)duly completed and executed originals of IRS Form W-8IMY with respect to any amounts payable to the Agent for the account of others, certifying that it is a “U.S. branch” and that all of the payments it receives for the account of others are not effectively connected with the conduct of its trade or business within the United States and that it is using such form as evidence of its agreement with the Borrowers to be treated as a U.S. person with respect to such payments (and the Borrowers and the Agent agree to so treat the Agent as a U.S. person with respect to such payments as contemplated by Section 1.1441-1(b)(2)(iv)(A) of the United States Treasury Regulations).
Notwithstanding anything to the contrary in this Section 3.01(e), no Lender shall be required to deliver any documentation that it is not legally eligible to provide.
(f)Treatment of Certain Refunds. If the Agent or any Lender determines, in its good faith discretion, that it has received a refund (whether received in cash or applied as an offset against other Taxes due) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by an Obligor or with respect to which an Obligor has paid additional amounts pursuant to this Section, it shall promptly pay to the Borrowers an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by an Obligor under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent or such Lender (including any Taxes), as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrowers, upon the request of the Agent or such Lender, agree to repay the amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority (other than any penalties arising from the gross negligence or willful misconduct of the Agent or the Lender)) to the Agent or such Lender in the event the Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (f), in no event will the Lender or the Agent, as the case may be, be required to pay any amount to the Borrowers pursuant to this subsection (f) the payment of which would place the relevant Lender or the Agent in a less favorable net after-Tax position than such Lender or the Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require the Agent, or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrowers or any other Person.
(g)Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(h)Defined Terms. For purposes of this Section 3.01, the term “applicable law” includes FATCA.
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Section 3.2.Illegality.
(a)If any Lender reasonably and in good faith determines that the introduction of any Requirement of Law, or any change in any Requirement of Law or in the interpretation or administration of any Requirement of Law, after the Closing Date, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make SOFR Loans, then, on notice thereof by the Lender to the Borrower Representative through the Agent, any obligation of such Lender to make SOFR Loans shall be suspended until such Lender notifies the Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist (which such Lender agrees to do promptly when such circumstances cease to exist).
(b)If a Lender reasonably and in good faith determines that it is unlawful for such Lender to maintain any SOFR Loan after the Closing Date in the circumstances set forth in Section 3.02(a), the Borrowers shall, upon its receipt of written notice of such fact and demand from such Lender (with a copy to the Agent), convert such SOFR Loans of that Lender then outstanding on the last day of the Interest Period thereof, if the Lender may lawfully continue to maintain such SOFR Loans to such day, or immediately, if the Lender may not lawfully continue to maintain such SOFR Loan and in the case of any conversion other than on the last day of such Interest Period thereof, pay amounts required by Section 3.04.
(c)If the obligation of any Lender to make or maintain SOFR Loans has been so terminated or suspended, the Borrower Representative may elect, by giving notice to the Lender through the Agent, that all Loans which would otherwise be made or maintained by the Lender as SOFR Loans shall instead be Base Rate Loans.
(d)Before giving any notice to the Agent under this Section 3.02, the affected Lender shall designate a different Lending Office with respect to its SOFR Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the judgment of the Lender, be illegal or otherwise materially disadvantageous to the Lender.
Section 3.3.Increased Costs and Reduction of Return.
(a)If any Lender reasonably and in good faith determines that, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance by that Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in each case after the Closing Date, there shall be any increase in the cost including Taxes (other than (i) Excluded Taxes and (ii) Indemnified Taxes and Other Taxes that are covered by Section 3.01) to such Lender of agreeing to make or making, funding or maintaining any SOFR Loans, then the Borrowers shall be liable for, and shall from time to time, on or before the date that is thirty (30) days after written demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs; provided that such Lender shall only be entitled to seek such additional amounts if such Lender is generally seeking the payment of similar additional amounts from similarly situated borrowers in comparable credit facilities (as certified by such Lender in the certificate delivered under Section 3.06); provided, further, that the Borrowers shall not be required to compensate a Lender for any such increases in capital for any period more than 180 days prior to the date such Lender delivers such demand; provided, further 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,
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shall in each case be deemed to be a change in the law under clause (a)(i) above, regardless of the date enacted, adopted or issued.
(b)If any Lender reasonably and in good faith shall have determined that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance by the Lender (or its Lending Office) or any corporation controlling the Lender with any Capital Adequacy Regulation, in each case after the Closing Date, affects or would affect the amount of capital required or expected to be maintained by the Lender or any corporation controlling the Lender and (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment or Loans under this Agreement, then, on or before the date that is thirty (30) days after written demand by such Lender to the Borrowers through the Agent, the Borrowers shall pay to the Lender, from time to time as specified by the Lender, additional amounts sufficient to compensate the Lender for such increase; provided that such Lender shall only be entitled to seek such additional amounts if such Lender is generally seeking the payment of similar additional amounts from similarly situated borrowers in comparable credit facilities (as certified by such Lender in the certificate delivered under Section 3.06); provided, further, that the Borrowers shall not be required to compensate a Lender for any such increases in capital for any period more than 180 days prior to the date such Lender delivers such demand.
Section 3.4.Funding Losses.
The Borrowers shall reimburse each Lender for any reasonable loss (other than loss of profits and the Applicable Margin) or expense which such Lender has actually incurred:
(a)if for any reason (other than a default by such Lender) a Credit Extension of any SOFR Loan does not occur on a date specified therefor in a Loan Notice, or a conversion to or continuation of any SOFR Loan does not occur on a date specified therefor in a Conversion/Continuation Notice;
(b)if any prepayment or other principal payment of, or any conversion of, any of its SOFR Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or
(c)if any prepayment of any of its SOFR Loans is not made on any date specified in a notice of prepayment given by the Borrower Representative.
including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its SOFR Loans or from fees payable to terminate the deposits from which such funds were obtained, but excluding any administrative fee or other amount chargeable by such Lender for the calculation of such loss. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.04 shall be delivered to the Borrower Representative and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
Section 3.5.Inability to Determine Rates.
Subject to Section 3.08, if, on or prior to the first day of any Interest Period for any SOFR Loan:
(a)the Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof; or
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(b)the Required Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Agent,
the Agent will promptly so notify the Borrower Representative and each Lender.
Upon notice thereof by the Agent to the Borrower Representative, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower Representative to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower Representative may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower Representative will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrowers shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 3.04. Subject to Section 3.08, if the Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Agent without reference to clause (c) of the definition of “Base Rate” until the Agent revokes such determination
Section 3.6.Certificates of Lenders.
Any Lender claiming reimbursement or compensation under this Article 3 shall deliver to the Borrower Representative (with a copy to the Agent) a certificate setting forth in reasonable detail the amount payable to the Lender hereunder (including the certifications required in Sections 3.03(a) and (b)) and such certificate shall be conclusive and binding on the Borrowers in the absence of demonstrable error. Such certificate shall set forth in reasonable detail the methodology used in determining the amount payable to the Lender.
Section 3.7.Substitution of Lenders; Mitigation.
If the Borrowers receive notice from any Lender of a claim for compensation under Section 3.01 or Section 3.03 or a claim pursuant to Section 3.02 or the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then such Lender shall (at the request of the Borrower Representative) take such steps as may be reasonably available to it to mitigate the effects of the event giving rise to such claim or payment (provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrowers agree to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof)) and, if such Lender is unable to mitigate such effects to the Borrower Representative’s reasonable satisfaction, the Borrower Representative may upon notice to such Lender and the Agent (i) replace such Lender by causing such Lender to assign its Loans (with the assignment fee to be paid by the Borrowers in such instance) pursuant to Section 11.07(b) to one or more other Lenders or Eligible Assignees identified by the Borrower Representative or (ii) notwithstanding Section 2.11, terminate the applicable Commitments of such Lender and repay all Obligations of the Borrowers owing to such Lender relating to the Loans and participations held by such Lender as of such termination date; provided
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that each such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Loan Documents from the applicable assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts). Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such Lender’s outstanding Loans; provided that if such Lender does not comply with this Section 3.07 within one Business Day after the Borrower Representative’s request, compliance with this Section 3.07 shall not be required to effect such assignment.
Section 3.8.Benchmark Replacement Setting.
(a)Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Agent and the Borrowers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Agent has posted such proposed amendment to all affected Lenders and the Borrowers so long as the Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.08(a)(i) will occur prior to the applicable Benchmark Transition Start Date.
(b)Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower Representative and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Borrower Representative of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.08(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.08, 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 3.08.
(d)Unavailability of Tenor of Benchmark. 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), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference 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 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 not or will not be representative, then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-
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representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)Benchmark Unavailability Period. Upon the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Representative may revoke any pending request for a SOFR borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Representative will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During a 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.
Section 3.9.Survival.
The agreements and obligations of the Borrowers in Section 3.01, Section 3.03 and Section 3.04 shall survive the termination of this Agreement and the payment of all other Obligations subject to the limitations set forth in such Sections.
Article 4
Conditions Precedent
Section 4.1.Conditions to Closing.
The obligation of each Lender to make a Loan on the Closing Date is subject to satisfaction of the following conditions precedent at or substantially simultaneously with the making of such Loan:
(a)The Agent shall have received each of the following, each of which shall be originals or facsimiles or PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Agent:
(i)executed counterparts of this Agreement, the U.S. Pledge Agreement and the UK Share Pledge; and
(ii)a Note executed by the Borrowers in favor of each Lender that has requested a Note at least three (3) Business Days prior to the Closing Date.
(b)The Agent shall have received the following personal property collateral requirements:
(i)proper financing statements in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code, covering the Collateral described in the U.S. Pledge Agreement;
(ii)evidence of the completion of, or of arrangements reasonably satisfactory to the Agent for the completion of, all other actions, recordings and filings of or with respect to the U.S. Pledge Agreement and the UK Share Pledge that the Agent may deem reasonably necessary in order to perfect the Liens created thereby; and
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(iii)evidence that all other action that the Agent may reasonably deem necessary in order to perfect the Liens created under the U.S. Pledge Agreement and the UK Share Pledge has been taken or that arrangements reasonably satisfactory to the Agent for the completion thereof have been made.
(c)The Agent shall have received:
(i)in respect of the Parent, Cirrata Group and Cirrata V:
(A)a copy of the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary of State (or similar applicable Government Authority) of its jurisdiction of incorporation or organization as of a recent date;
(B)a copy of the bylaws, operating agreement, or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Obligor as of the Closing Date;
(C)copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Obligor authorizing the execution, delivery and performance of the Loan Documents to which such Obligor is a party, certified as of the Closing Date by the Secretary or an Assistant Secretary of such Obligor (or in the case of a limited liability company, of its manager);
(D)a certificate of the Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and true signatures of the officers of such Obligor authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be delivered by such Obligor hereunder;
(E)a certificate of good standing or equivalent document for each Obligor from the Secretary of State (or similar, applicable Governmental Authority) of its jurisdiction of incorporation or organization as of a recent date; and
(ii)in respect of Cirrata UK:
(A)a copy of the constitutional documents (certificate of incorporation, most recent articles of association, memorandum of association and change of name certificates);
(B)a copy of a resolution of the board of directors;
(C)a specimen signature of each person authorized by the board resolutions above in relation to the Loan Documents and related documents;
(D)a copy of a resolution signed by all the holders of the issued shares approving the terms of and the transactions contemplated by the Loan Documents;
(E)a certificate of an authorized signatory or director of Cirrata UK:
(F)confirming that borrowing, guaranteeing or securing the Obligations would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded; and
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(G)certifying that each copy document relating to it specified in this section V is correct, complete and in full force and effect and has not been amended or superseded as at the date no earlier than the date of this Agreement.
(d)The Acquisition Agreement shall not have been amended or waived, and no consents shall have been given with respect thereto, in any material respect, by the Parent or its Subsidiaries in a manner materially adverse to the interests of the Lenders without the consent in writing (such consent not to be unreasonably withheld, conditioned or delayed) by the Lenders (it being understood and agreed that (i) any amendment, waiver or consent that results in any increase in the consideration for the Beat Acquisition shall not be deemed to be materially adverse to the interests of the Lenders so long as such increase in consideration is not funded with additional indebtedness for borrowed money and (ii) any amendment, waiver or consent that results in any decrease in the consideration for the Beat Acquisition shall not be deemed to be materially adverse to the interests of the Lenders so long as (a) any such decrease is (x) pursuant to a purchase price adjustment under the Acquisition Agreement, (y) no greater than 10% of the total amount of consideration required to consummate the Beat Acquisition set forth in the Acquisition Agreement (as in effect on the date hereof) or (z) applied (A) first to reduce the Cash and Equity Amount to 40% of the Funded Capitalization and (B) after giving effect to the application of the reduction of the amount of consideration in clause (A) above, as follows: (1) 60% to reduce the commitments under the Term Loan Facility and (2) 40% to reduce the Cash and Equity Amount).
(e)The Agent shall have received a customary written opinion, reasonably acceptable to the Agent in form and substance, (addressed to the Agent and the Lenders and dated the Closing Date) from each of (i) Debevoise & Plimpton LLP, New York counsel for the Obligors and (ii) Potter Anderson & Corroon LLP, Delaware counsel for the Obligors.
(f)The Agent shall have received evidence that all fees required to be paid on the Closing Date pursuant to the Fee Letter will, upon the borrowing of the Loans, be paid (which amounts may be offset against the proceeds of the Loans); provided that this condition shall be deemed to have been satisfied by the inclusion of such payments in a Loan Notice.
(g)The Agent shall have received a certificate signed by a Responsible Officer, dated as of the Closing Date, confirming that (i) all of the closing conditions under the Acquisition Agreement have been satisfied (save for payment of the purchase price and any other step that is to be or can only be satisfied on the Closing Date) or waived and (ii) the Cash Contribution Requirement shall have been satisfied.
(h)So long as requested by the Agent in writing at least ten (10) business days prior to the Closing Date, the Agent shall have received, at least three (3) Business Days prior to the Closing Date, all documentation with respect to the Borrowers (after giving effect to the Transactions) that is required by regulatory authorities under applicable “know your customer” and anti-terrorism, sanctions, and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.
(i)No Major Event of Default shall have occurred and be continuing on such date or immediately after giving effect to the proposed Credit Extension on the Closing Date.
(j)The Agent shall have received a Loan Notice in accordance with the requirements hereof.
Section 4.2.Determinations Under Section 4.01.
For purposes of determining compliance with the conditions specified in Section 4.01, each of the Lenders shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by, or acceptable or
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satisfactory to, the Lenders unless an officer of the Agent responsible for the Transactions shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of any Lender, such Lender shall not have made available to the Agent on the Closing Date such Lender’s Pro Rata Share of the borrowing to be made on such date.
Article 5
Representations and Warranties
Each Obligor represents and warrants to the Agent and each Lender that:
Section 5.1.Corporate Existence and Power.
The Parent and each of its Subsidiaries:
(a)is duly organized, validly existing and, to the extent relevant, in good standing (or its equivalent) under the laws of, and as applicable in, the jurisdiction of its incorporation or organization;
(b)has the requisite corporate (or other organizational) power and authority and all governmental licenses, authorizations, consents and approvals to own its assets and carry on its business;
(c)is duly qualified and in good standing under the laws of, and as applicable in, each jurisdiction 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 such Requirements of Law, or decrees as are being contested in good faith by appropriate proceedings;
except, in each case referred to in clauses (a) (other than with respect to the existence of the Borrowers or the Parent), (b), (c) and (d), to the extent that the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.2.Corporate Authorization; No Contravention.
The Transactions to be entered into by each Obligor are within its corporate or other organizational powers. The Transactions (including the execution, delivery and performance by each Obligor of each Loan Document to which it is a party) have been duly authorized by all necessary corporate or other organizational action of each Obligor, and do not and will not:
(a)contravene the terms of any of such Obligor’s Organization Documents;
(b)conflict with or result in any breach or contravention of, or result in or require the creation of any Lien (other than the Transaction Liens) under, any document evidencing any material Contractual Obligation to which such Obligor is a party, except to the extent that such conflicts, in the aggregate, would not reasonably be expected to have a Material Adverse Effect; or
(c)violate any Requirement of Law or any order, injunction, writ or decree of any Governmental Authority to which such Obligor or its property is subject, except to the extent that such violations, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.3.Governmental Authorization.
No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, each Obligor of each Loan Document to which it is a party or the
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granting of any Liens by any Obligor pursuant to the Loan Documents, except (i) such as have been obtained and are in full force and effect, (ii) filings necessary to perfect the Transaction Liens, (iii) such as may be required in accordance with applicable securities Laws in connection with realization on the Pledged Collateral and (iv) those the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.
Section 5.4.Binding Effect.
Each Loan Document that has been delivered by an Obligor has been duly executed and delivered by each Obligor party thereto and constitutes a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceeding in equity or at law.
Section 5.5.Litigation.
Except as set forth on Schedule 5.05 or as otherwise disclosed by the Parent in an SEC filing on or prior to the Closing Date, there are no actions, suits, proceedings, claims or disputes pending, or, to the knowledge of any Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, against the Parent or any of its Subsidiaries or any of their respective properties that: (a) on the Closing Date, affects or pertains to this Agreement or any other Loan Document or (b) there is reasonable likelihood of an adverse determination with respect to any Obligor and that, if adversely determined, individually or in the aggregate would reasonably be expected to have a Material Adverse Effect. No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement or any other Loan Document.
Section 5.6.Employee Benefit Plans.
(a)Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law except to the extent that such non-compliance would not reasonably be expected to have a Material Adverse Effect. Except for occurrences or circumstances that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect: (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Single Employer Pension Plan has any Unfunded Pension Liability that would reasonably be expected to have a Material Adverse Effect; (iii) no Obligor or any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA with respect to a Multiemployer Plan; and (iv) no Obligor or any ERISA Affiliate has knowingly engaged in a transaction that would reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.
(b)Each Foreign Pension Plan is in compliance in form and operation with its terms and with applicable Requirements of Law, except where any failure to comply, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(c)Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Parent nor any Subsidiary:
(i)is or has at any time been an "employer" (as defined for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an "occupational pension scheme" which is not a "money purchase scheme" (both terms as defined in the Pensions Act 1993 (UK)); or
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(ii)is or has within the past six years been "connected" with or an "associate" (as those terms are used in sections 38 and 43 of the Pensions Act 2004 (UK)) of such an "employer".
Section 5.7.Margin Regulations.
(a)Neither the Parent nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b)None of the proceeds of the Loans will be used to acquire Margin Stock.
(c)None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act of 1933, as amended, or the Exchange Act, or regulations issued pursuant thereto, or Regulation T, U or X of the FRB.
Section 5.8.Title to Properties.
The Parent or one or more of its Subsidiaries have good legal title in fee simple or valid leasehold interests in, all real property that is material to the ordinary conduct of their respective businesses, except for any failure to have such good title and any defects in title or interests as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.9.Taxes.
The Parent and each of its Subsidiaries has timely filed all federal Tax and other Tax returns and reports required to be filed, and has paid all federal Tax and other Taxes levied or imposed upon it or its properties, income or assets that have become due and payable (including in its capacity as a withholding agent), except those (i) that are not more than 30 days overdue, (ii) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with, as applicable, SAP, GAAP or UK GAAP or (iii) where the failure to make such filing or payment would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. As of the date hereof, Cirrata UK is treated as a corporation for U.S. federal income tax purposes.
Section 5.10.Financial Condition.
(a)The Parent has heretofore furnished to the Agent (x) its consolidated balance sheet and statements of total comprehensive income, stockholders equity and cash flows as of and for the fiscal year ended December 31, 2023 reported on by KPMG LLP, independent public accountants and (y) its unaudited consolidated balance sheet and related statements of total comprehensive income, stockholders’ equity and cash flows as of the end of and for the fiscal quarter ended March 31, 2024. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Parent and its Subsidiaries as of such dates and for such periods in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (y) of the foregoing sentence).
(b)Since the Closing Date, there has been no Material Adverse Effect.
Section 5.11.Environmental Matters.
(a)All real properties owned or leased by the Parent or any of its Subsidiaries as of the Closing Date have been, and continue to be, owned, leased or operated by the Parent and its Subsidiaries in compliance with all Environmental Laws, except where failure to so comply would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
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(b)There are no pending or, to the knowledge of any Borrower, threatened (in writing), Environmental Claims against the Parent or any of its Subsidiaries, except for such Environmental Claims that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c)The Parent and each of its Subsidiaries have been issued and are in compliance with all permits, certificates, approvals, licenses and other authorizations required under any Environmental Law to own, lease and operate their property or to conduct their businesses except where failure to obtain or comply with the foregoing would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(d)There are no Environmental Liabilities, and there is no existing condition, situation or set of circumstances that would reasonably be expected to result in any Environmental Liability, of the Parent or any of its Subsidiaries that, individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect.
Section 5.12.Investment Company Act.
Neither the Parent or the Borrowers nor any of their respective Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.
Section 5.13.Subsidiaries.
(a)The Capital Stock of each of the Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable. Except (i) as set forth on Schedule 5.14(a) and (ii) any options, warrants, calls, rights, commitments or other agreements in favor of the Parent and its Subsidiaries, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which any of the Subsidiaries of the Parent is a party requiring, and there is no Capital Stock of any Subsidiary of the Parent outstanding which upon conversion or exchange would require, the issuance by any such Subsidiary of any additional Capital Stock of such Subsidiary or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, any Capital Stock of such Subsidiary, except equity compensation plans and other employee incentive schemes maintained for the benefit of officers, directors, employees and consultants of the Parent and its Subsidiaries.
(b)Schedule 5.14(b) sets forth, in all material respects, the name of, and the ownership interest of the Parent (or the applicable Subsidiary) in, each of its Subsidiaries and identifies the type of entity of each such Subsidiary, in each case as of the Closing Date (after giving effect to the Transactions).
Section 5.14.Intellectual Property.
Except as could not reasonably be expected to have a Material Adverse Effect, the Parent and each of its Subsidiaries owns or possesses the right to use all patents, patent rights, technology, trademarks, service marks, trade names, copyrights, trade secrets, domain names, software, database rights and other intellectual property rights used in the business of such Person.
Section 5.15.Full Disclosure.
(i) All written information (other than financial projections, budgets, estimates and information of a general economic or industry nature) provided to the Arranger directly by or on behalf of the Parent or its Subsidiaries in connection with the Transactions was, as of the Closing Date and when taken as a whole (after giving effect to all supplements thereto), correct in all material respects and does not contain
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any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made and (ii) the financial projections relating to the Parent or its Subsidiaries provided by the Parent to the Arranger directly by or on behalf of the Parent or its Subsidiaries in connection with the Transactions were prepared in good faith based upon assumptions that were believed by the preparer thereof to be reasonable at the time such financial projections were furnished to the Arranger and in light of the circumstances for which they were prepared, it being understood and agreed that financial projections are as to future events, are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the Parent’s control, that no assurance can be given that any particular projection will be realized, that financial projections are not a guarantee of financial performance and that actual results may differ significantly from financial projections and such differences may be material.
Section 5.16.Solvency.
Immediately after giving effect to the Transactions to occur on the Closing Date, (a) the fair value of the assets of the Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the Parent and its Subsidiaries, taken as a whole, do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature; and (c) the Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is conducted on the Closing Date. The amount of contingent liabilities at any time shall be computed as the amount that, in 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.
Section 5.17.Security Interests.
On the Closing Date, the Security Documents will create valid security interests in the Collateral to the extent set forth therein. At all times thereafter, the Security Documents will create valid and perfected security interests in the Collateral from time to time covered or purportedly covered thereby to the extent a security interest in such Collateral may be perfected by filing a financing statement under the Uniform Commercial Code or by establishing control in favor of the Agent.
Section 5.18.Compliance with Laws.
Each of the Parent and its Subsidiaries is in compliance with the requirements of all laws (including Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to so comply, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.19.Sanctions Laws and Regulations.
(a)The Obligors have instituted and maintained policies and procedures reasonably designed to promote and achieve compliance by the Parent, its Subsidiaries and their respective directors, officers, employees, and agents with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws applicable to such Person.
(b)None of the Parent, its Subsidiaries or their respective directors or officers, or to the knowledge of a Responsible Officer, their respective employees or agents acting in any capacity in connection with this Agreement (i) is a Sanctioned Person; or (ii) has or is engaged in any dealings or
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transactions (1) with any Sanctioned Person, (2) in or involving any Sanctioned Country, or (3) otherwise in violation of Sanctions (except, in the case of (1) and (2), to the extent permissible under the relevant Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws applicable to such Parent, Subsidiary director, employee or agent).
Section 5.20.Use of Proceeds.
The Borrowers will use the proceeds of the Loans only for the purposes set forth in Section 6.10.
Article 6
Affirmative Covenants
Until all principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification obligations not yet due and payable) and all Commitments have been terminated, each Obligor covenants and agrees with the Lenders that:
Section 6.1.Financial Statements.
The Borrowers shall deliver to the Agent, for further distribution to each Lender:
(a) (i) within one hundred twenty (120) days after the end of each Fiscal Year of the Parent, the Parent’s audited consolidated balance sheet and related statements of total comprehensive income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, as audited by KPMG LLP or another independent accounting firm of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (except for qualifications pertaining to debt maturities occurring within 12 months of such audit or anticipated or actual breach of financial covenants)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP and (ii) within one hundred eighty (180) days after the end of each Fiscal Year of the Company, to the extent such financial statements are prepared in the ordinary course of business, the Company’s audited consolidated balance sheet and related statements of total comprehensive income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, as audited by Ernst & Young LLP or by an independent accounting firm of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (except for qualifications pertaining to debt maturities occurring within 12 months of such audit or a breach or anticipated breach of financial covenants)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with UK GAAP; and
(b)within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Parent, commencing with the first Fiscal Quarter ending after the Closing Date, (i) the Parent’s unaudited consolidated balance sheet and related statements of total comprehensive income, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by a Financial Officer of the Parent as presenting fairly in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis
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in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes and (ii) management-prepared unaudited financial statements for the Company in accordance with the Company’s existing practices and (iii) management-prepared unaudited financial statements for Cirrata Group in accordance with Cirrata Group’s existing practices.
Section 6.2.Certificates; Other Information.
The Borrowers shall furnish to the Agent, for further distribution to each Lender:
(a)concurrently with the delivery of the financial statements referred to in Section 6.01(a)(i) and Section 6.01(b)(i), a Compliance Certificate executed by a Responsible Officer (i) certifying as to whether a Default exists and, if a Default exists, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations with respect to Section 7.09 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 5.11(a) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(b)concurrently with the delivery of the financial statements referred to in Section 6.01(a)(ii), a Company Audit Certificate executed by a Responsible Officer; and
(c)promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Parent, the Borrowers or any Subsidiary of the Parent, or compliance with the terms of this Agreement, as the Agent may reasonably request, in each case to the extent (i) not prohibited by (x) applicable law or (y) the provisions of any confidentiality agreement or other agreement, document or instrument binding upon the Parent, the Borrowers or such Subsidiary or (ii) such information (x) is not subject to attorney client or similar privilege or does not constitute attorney work product or (y) does not constitute trade secrets or proprietary information of the Parent and its subsidiaries and/or any customers or suppliers of the foregoing (clause (i) and (ii), collectively, the “Information Restrictions”).
Section 6.3.Notices.
The Borrowers shall promptly notify the Agent:
(a)of the occurrence of any Event of Default;
(b)of (i) any dispute, litigation, investigation, proceeding or suspension between the Parent or any Subsidiary and any Governmental Authority or (ii) the commencement of, or any material development in, any litigation (including any governmental proceeding or arbitration proceeding), tax audit or investigative proceeding, claim, lawsuit, and/or investigation against or involving the Parent or any of its Subsidiaries or any of its or their businesses or operations, including pursuant to any applicable Environmental Laws, in each case that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect; and
(c)of the occurrence of any of the following events that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect:
(i)an ERISA Event; or
(ii)the establishment of or commencement of contributions to any Plan subject to Title IV of ERISA or Section 412 of the Code by any Obligor or any ERISA Affiliate; or
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(iii)the adoption of any amendment to a Plan subject to Title IV of ERISA or Section 412 of the Code that is sponsored or contributed to by any Obligor or any ERISA Affiliate, if such amendment would be reasonably be expected to result in a material increase in contributions or Unfunded Pension Liability.
Each notice under this Section shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action the Parent or any affected Subsidiary proposes to take with respect thereto and at what time.
Documents required to be delivered pursuant to Section 6.01, Section 6.02 or Section 6.03 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Representative posts such documents or provides a link thereto on a website on the Internet at the website address listed on Schedule 11.02; (ii) on which such documents are posted on the Borrowers’ behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent) or (iii) on which such documents are made publicly available at www.sec.gov. Except for Compliance Certificates, the Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrowers hereby acknowledge that (a) the Agent will make available information and projections (collectively, “Borrower Materials”) to the Lenders by posting the Borrower Materials on IntraLinks or another similar secure electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i. e., Lenders that do not wish to receive material non-public information with respect to the Parent, its Subsidiaries or their respective securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) they will clearly identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, its Subsidiaries or their respective securities for purposes of United States federal and other applicable securities laws, it being understood that such Borrower Materials are subject to Section 11.08; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Lender”; and (z) the Agent shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Lender.”
Section 6.4.Preservation of Corporate Existence, Etc.
The Obligors shall, and shall cause each Subsidiary to (except to the extent not limited by Section 7.03 or Section 7.05):
(a)preserve and maintain in full force and effect its existence and, to the extent relevant, good standing under the laws of its state or jurisdiction of incorporation or organization, as applicable except (other than with respect to the existence of the Borrowers or the Parent) where the failure to do so would not reasonably be expected to have a Material Adverse Effect; and
(b)preserve and maintain in full force and effect all governmental rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business, except, in
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the case of this clause (b), where such failure to preserve and maintain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 6.5.Insurance.
The Obligors shall, and shall cause each Subsidiary to, maintain with financially sound and reputable independent insurers insurance against losses or damage of the kinds customarily insured against by Persons engaged in the same or similar businesses, 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 the Parent and its Subsidiaries) as are customarily carried under similar circumstances by such other Persons, except where such failure to maintain such insurance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 6.6.Payment of Tax Obligations.
The Obligors shall, and shall cause each Subsidiary to, pay and discharge as the same shall become due and payable, all Tax liabilities imposed upon it or its properties or assets, except those (a) that are not more than 30 days overdue, (b) are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with SAP, GAAP or UK GAAP (as applicable) or (c) the failure of which to pay would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Cirrata UK will be treated as a corporation for U.S. federal income tax purposes.
Section 6.7.Compliance with Laws.
The Obligors shall, and shall cause each Subsidiary to, comply with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards Act, the Patriot Act and all applicable Environmental Laws), except (a) for such noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (b) as may be contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, SAP or UK GAAP (as applicable).
Section 6.8.Compliance with ERISA.
The Obligors shall, and shall cause each Subsidiary thereof to, (a) maintain each Plan and Foreign Pension Plan sponsored by a Obligor or a Subsidiary thereof in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal, state, or non-U.S. law; and (b) make all required contributions to any Pension Plan and Foreign Pension Plan, except where such failure to maintain as set forth in (a) or to make contributions as set forth in (b) would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
Section 6.9.Inspection of Property and Books and Records.
The Obligors shall, and shall cause each Subsidiary to, maintain proper books of record and account, in which full, true and correct entries in all material respects shall be made of all financial transactions and matters involving the assets and business of such Obligor and such Subsidiary to permit the preparation of such Persons’ financial statements required by Section 6.01 in accordance with GAAP, SAP or UK GAAP, as applicable. Not more than once per Fiscal Year, the Obligors shall permit representatives and independent contractors of the Agent or its designees to visit and inspect any of their respective properties at which their principal books and records are kept, to examine their respective corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective senior management, and independent
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public accountants, all at such reasonable times during normal business hours, upon reasonable advance notice to the Borrower Representative; provided that (i) members of senior management will be notified and permitted to be present during any such meetings; (ii) when an Event of Default exists the Agent or any Lender (through coordination with and accompanying the Agent) may do any of the foregoing as often as requested at any time during normal business hours and upon reasonable advance notice; (iii) the Borrowers shall not be required to reimburse the costs of more than one such visit per Fiscal Year, except during the existence of an Event of Default and (iv) notwithstanding anything to the contrary contained herein, this Section 6.09 shall be subject to the Information Restrictions.
Section 6.10.Use of Proceeds.
The proceeds of the Loans shall be used (a) to finance a portion of the Transactions and (b) to pay fees and expenses incurred in connection with the Transactions.
Section 6.11.Further Assurances.
(a)Each Obligor will, and will cause each other Obligor to, at the request of the Agent, execute and deliver any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any applicable law to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the Borrowers’ expense in accordance with Section 11.04. The Obligors will provide to the Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Agent as to the perfection and priority of the Transaction Liens created or intended to be created by the Security Documents.
(b)With respect to any property acquired after the Closing Date by any Obligor that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, promptly (and in any event within 30 days after the acquisition thereof (or such later date acceptable to the Agent in its discretion)) (i) execute and deliver to the Agent such amendments or supplements to the relevant Security Documents or such other documents as the Agent shall reasonably deem necessary or advisable to grant to the Agent, for the benefit of the Secured Parties, a Lien on such property subject to no Liens other than Liens permitted or not prohibited by this Agreement, and (ii) take all actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, but not limited to, the filing of financing statements in such jurisdictions as may be reasonably requested by the Agent, at the Borrowers’ expense in accordance with Section 11.04. The Borrowers shall otherwise take such actions and execute and/or deliver to the Agent such documents as the Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Security Documents on such after-acquired properties, including actions described in Section 6.11(a), all at the Borrower’s expense in accordance with Section 11.04.
Section 6.12.Conduct of Business.
    Each Obligor shall, and shall cause its Subsidiaries to, only engage in the material lines of business engaged in by such Person on the Closing Date (or, as applicable, at the time of the acquisition or creation of such Subsidiary) and any business similar, related, incidental, complementary or ancillary thereto or a reasonable expansion, development, or extension thereof.
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Section 6.13.Fiscal Year. Each Obligor shall, and shall cause its Subsidiaries to, keep its Fiscal Year-end as December 31, unless consented to in writing by the Agent.
Section 6.14.Maintenance of Properties.
The Obligors will, and will cause each of their Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear and casualty or condemnation excepted, all material properties used or useful in the business of such Obligor and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, except where such failure would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
Section 6.15.Sanctions Laws and Regulations.
(a)The Obligors shall not, and shall ensure that none of their Subsidiaries will, directly or indirectly use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, anyone acting on behalf of a government or department, agency, or instrumentality of a government, any officer or employee of a company or business owned in whole or part by a government, or anyone else acting in an official capacity, in order to obtain, retain, or direct business, or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or any similar legislation applicable to such Persons; (ii) to fund, finance or facilitate any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned Country (except to the extent permissible under the relevant Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws applicable to such Person); (iii) in any other manner that will result in the violation of any Sanctions; or (iv) in any other manner that could reasonably be expected to result in any Person becoming a Sanctioned Person.
(b)The Obligors shall not, and shall ensure that none of their Subsidiaries will, use funds or assets obtained directly or indirectly from transactions in violation of Sanctions, to pay or repay any amount owing to the Lenders under this Agreement.
(c)The Obligors shall, and shall ensure that their Subsidiaries will, maintain policies and procedures reasonably designed to promote and achieve compliance with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws applicable to such Persons.
Article 7
Negative Covenants
Until all principal of and interest on each Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, contingent, surviving indemnification obligations not yet due and payable) and all Commitments have been terminated, the Obligors covenant and agree with the Lenders that:
Section 7.1.Limitation on Indebtedness and Disqualified Capital Stock.
The Obligors shall not incur, issue or at any time be liable with respect to any Indebtedness or Disqualified Capital Stock, except:
(a)Indebtedness under the Loan Documents;
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(b)Indebtedness consisting of (A) the financing of insurance premiums payable by the Parent or any Borrower or (B) take-or-pay obligations, in each case in the ordinary course of business;
(c)Indebtedness incurred by the Parent or any Borrower in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business, including in respect of real-estate leases, workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims;
(d)Permitted Swap Obligations;
(e)Indebtedness (i) existing on the date hereof and, in the case of Indebtedness with an outstanding principal amount in excess of $10,000,000, which are listed in Schedule 7.01, and (ii) Refinancing Indebtedness in respect thereof;
(f)(i) Capitalized Lease Liabilities and Purchase Money Debt in an aggregate principal amount not to exceed at any time outstanding $10,000,000 and (ii) Refinancing Indebtedness in respect thereof (but disregarding the requirements of clauses (b) through (d) of the definition thereof);
(g)Indebtedness owed by the Parent or any Borrower to the Parent, any Borrower or any Subsidiary; provided that all such Indebtedness owed by an Obligor to a Subsidiary that is not an Obligor shall be unsecured and subordinated to the Obligations pursuant to the Global Note.
(h)Indebtedness in respect of surety and other similar bonds in the ordinary course of business;
(i)other Indebtedness in an aggregate principal amount not to exceed at any time outstanding $10,000,000;
(j)Indebtedness constituting (i) indemnification obligations, obligations in respect of purchase price or other similar adjustments or obligations under deferred compensation or other similar arrangements incurred in connection with an Acquisition, any other Investment or any Disposition, in each case permitted under this Agreement and (ii) settlement obligations in connection with Specified Stock Buybacks;
(k)Contingent Obligations of any Person in respect of Indebtedness otherwise permitted to be incurred under this Section 7.01;
(l)Indebtedness consisting of the deferred purchase price of equity interests (or option or warrants or similar instruments) of any future, present or former employee, officer, director, manager or consultant of the Parent or any Subsidiary (or any direct or indirect parent thereof) issued (whether in the form of notes or otherwise) for the purchase or redemption thereof pursuant to the terms of any compensation plan or employment contract;
(m)Cash Management Obligations incurred in the ordinary course of business;
(n)obligations of the Parent or any Borrower to maintain the capital or solvency of any of its Subsidiaries in accordance with the requirements of or under any agreement with any Governmental Authority;
(o)all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in the clauses above; and
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(p)overdraft facilities incurred in the ordinary course of business.
It is understood and agreed that any exception from this Section 7.01 that allows the incurrence or existence of Indebtedness will also permit the issuance and existence of Disqualified Capital Stock.
Section 7.2.Liens.
The Obligors shall not create, assume or suffer to exist any Lien on any property now owned or hereafter acquired by it, except for the following:
(a)Transaction Liens;
(b)Liens securing obligations in an aggregate amount not to exceed, at any time outstanding, $10,000,000;
(c)Liens on cash, Cash Equivalents, other securities or deposits, accounts or investment property (in each case, other than Collateral) securing Permitted Swap Obligations and Liens securing Cash Management Obligations permitted by Section 7.01;
(d)Permitted Encumbrances;
(e)Liens existing on the date hereof and, to the extent such Lien is on property of the Parent or any Borrower or such Lien secures Indebtedness for borrowed money in excess of $5,000,000, listed in Schedule 7.02, including extensions, renewals and replacements of such Liens; provided that (i) such Lien shall not apply to any additional property (other than after-acquired title in or on such property and related assets and proceeds of the collateral in accordance with the document creating such Lien); it being understood that individual financings of the type permitted under Section 7.01(f) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its Affiliates and (ii) to the extent securing Indebtedness, the Indebtedness secured thereby is not increased except as otherwise permitted under Section 7.01;
(f)Liens on cash or Cash Equivalents securing letters of credit issued in an aggregate amount at any time outstanding not to exceed $10,000,000;
(g)Liens arising in the ordinary course of business for sums being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP, SAP or UK GAAP, or for sums not due, and in either case not involving any deposits or advances for borrowed money or the deferred purchase price of property or services;
(h)Liens securing Indebtedness permitted by Section 7.01(f); provided that such Liens are limited to the assets financed by the relevant Capitalized Lease Liabilities or Purchase Money Debt or any Refinancing Indebtedness in respect thereof (it being understood that individual financings of the type permitted under Section 7.01(f) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its Affiliates);
(i)[reserved];
(j)Replacements of any Liens permitted under this Section 7.02 when incurred, provided that (i) such Lien shall not apply to any additional property (other than after acquired title in or on such property and related assets and proceeds of the existing collateral in accordance with the document creating such Lien); it being understood that individual financings of the type permitted under Section 7.01(f) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its Affiliates and (ii) if such Lien secures Indebtedness, the Indebtedness secured thereby is
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not increased except as otherwise permitted under Section 7.01 or by amounts of the type described under clause (a) of the proviso to the definition of “Refinancing Indebtedness”;
(k)Liens granted by any Obligor in favor of any other Obligor;
(l)Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(m)Liens attaching solely to cash earnest money deposits required to be made under the terms of any letter of intent or purchase agreement for a permitted Acquisition;
(n)Liens incurred in connection with the collection or disposition of delinquent accounts receivable in the ordinary course of business;
(o)Liens securing repayment of funds advanced to the Parent or any Subsidiary under custody agreements, securities lending arrangements, securities clearing agreements and similar arrangements entered into in the ordinary course of business;
(p)Liens in connection with any repurchase agreement, buy/sell agreement or similar agreement or instrument on assets or property transferred by the Parent or any Subsidiary, securing the obligation of the Parent or such Subsidiary to repurchase or buy such assets or property as well as its other obligations under such repurchase agreement, buy/sell agreement or similar agreement or instrument;
(q)Liens on any real property securing Indebtedness of the Parent or any Subsidiary in respect of which (i) the recourse of the holder of such Indebtedness (whether direct or indirect and whether contingent or otherwise) under the instrument creating the Lien or providing for the Indebtedness secured by the Lien is limited to such real property directly securing such Indebtedness and (ii) such holder may not under the instrument creating the Lien or providing for the Indebtedness secured by the Lien collect by levy of execution or otherwise against assets or property of the Parent or such Subsidiary (other than such real property directly securing such Indebtedness) if the Parent or such Subsidiary fails to pay such Indebtedness when due and such holder obtains a judgment with respect thereto, except for recourse obligations that are customary in “nonrecourse” real estate transactions;
(r)Liens constituting lock-up arrangements and rights of first refusal in respect of certain Capital Stock entered into in connection with the sale or transfer of such Capital Stock;
(s)Liens arising as a result of the segregation and deposit of certain Capital Stock in connection with securities disposition plans in respect of such Capital Stock otherwise permitted hereunder (including any Specified Stock Buybacks);
(t)Liens securing or arising in connection with any Investment permitted under Section 7.07 (or any letters of credit securing or arising in connection with such Investment);
(u)Liens arising in respect of any letters of credit or guarantees granted in connection with office leases of the Parent or any of its Subsidiaries;
(v)Liens arising from pledges or deposits of cash, securities or portfolio investments made by any Insurance Subsidiary (A) as a condition to obtaining or maintaining any licenses issued to it by any Governmental Authority or (B) as otherwise required to comply with the requirement of applicable insurance laws;
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(w)rights of first refusal, preemptive rights and tag, drag and similar rights, put and call rights and similar rights or encumbrances and restrictions on sale or transfer in the shareholder agreement for the Company; and
(x)leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which (i) do not interfere in any material respect with the business of the Parent or any Borrower and (ii) are permitted by Section 7.03.
Notwithstanding the foregoing, in no event shall any Lien be permitted to exist on the Capital Stock of AAC.
Section 7.3.Disposition of Assets.
The Obligors shall not Dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable with or without recourse and Capital Stock of any Subsidiary whether newly issued or otherwise), except:
(a)(i) Dispositions of inventory and equipment in the ordinary course of business, (ii) Dispositions of cash and Cash Equivalents and (iii) Dispositions of assets obtained through foreclosure or otherwise through the exercise of remedies in respect of obligations owed by a third party to the Parent or any of its Subsidiaries or otherwise in respect of mortgage loans insured by the Parent or any of its Subsidiaries;
(b)the sale of property to the extent that such property is exchanged for credit against the purchase price of replacement property or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement property;
(c)Dispositions by the Parent or any of the Borrowers of Investments permitted under this Agreement, in each case, consistent with the investment policy of the Parent or such Borrower in effect from time to time, as the case may be;
(d)Dispositions by the Parent or any Borrower to the Parent or any Borrower;
(e)Dispositions by the Parent or the Borrowers in connection with a Specified Stock Buyback;
(f)obsolete, surplus or worn out property disposed of by the Parent or any Borrower in the ordinary course of business of the Parent and such Borrower;
(g)transfers resulting from any casualty or condemnation or expropriation of property or assets;
(h)licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property (A) in the ordinary course of business of the Parent and any Borrower and which do not materially interfere with the business of the Parent or any Borrower or (B) pursuant to Section 4.14 of the Aurora Transaction Agreements;
(i)Dispositions consisting of (A) any transaction permitted by Section 7.05 (other than Section 7.05(a)(i)), (B) the making of any Investments permitted by Section 7.07, (C) the creation, incurrence or assumption of any Lien permitted under Section 7.02, and (D) the making of any Restricted Payments permitted by Section 7.06;
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(j)issuances of Capital Stock pursuant to and in accordance with equity compensation plans or programs and other benefit and compensation plans, programs or agreements for directors, officers, employees, managers or consultants of the Parent and its Subsidiaries;
(k)the sale, discount, forgiveness or other compromise of notes or other accounts in the ordinary course of business or in connection with collection thereof;
(l)issuances of Capital Stock (i) by the Parent or (ii) by a Borrower to the Parent;
(m)Dispositions not otherwise permitted hereunder; provided that (x) the consideration received for the applicable assets shall be in an amount at least equal to the fair market value thereof (as determined by the Borrower Representative in good faith), (y) at least 75% of the purchase price for the applicable assets shall be paid to the Parent or a Borrower (as applicable) in cash or Cash Equivalents and (z) the Net Proceeds of any such Disposition to the extent constituting an Asset Sale are applied in accordance with Section 2.06(d)(ii) to the extent required by such Section and within the time periods set forth therein;
(n)sale and lease back transactions in respect of any property acquired after the Closing Date, and consummated within 365 days after the acquisition of such property;
(o)Dispositions of Investments in joint ventures to the extent required by, or made pursuant to (i) customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements or (ii) any other arrangement permitted pursuant to Section 7.07(p);
(p)Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(q)Dispositions required by, or made to comply with any order of, any Governmental Authority or pursuant to any applicable Requirement of Law;
(r)other Dispositions for consideration not in excess of $5,000,000; and
(s)the Disposition of AAC and its subsidiaries pursuant to the Aurora Transaction Agreements; provided that the Net Proceeds from any Disposition pursuant to this Section 7.03(s) are applied in accordance with Section 2.06(d)(ii) within the time limit set forth therein.
Upon consummation of a sale, transfer or other Disposition permitted under this Section 7.03, any Liens created under the Security Documents in respect of the assets Disposed of shall be automatically released and the Agent shall (to the extent applicable) deliver to the Borrower Representative, upon the Borrower Representative’s request and at the Borrower Representative’s expense in accordance with Section 11.04, such documentation as necessary to evidence the release of the Agent’s security interests, if any, in the assets being Disposed of, including amendments or terminations of Uniform Commercial Code or UK Companies House financing statements, if any, the return of stock certificates, if any, and the release of any Subsidiary being Disposed of in its entirety from all of its obligations, if any, under the Loan Documents; provided that the Borrower Representative shall have provided to the Agent such certificates evidencing compliance with the Loan Documents as the Agent shall reasonably request.
Section 7.4.Transactions with Affiliates.
The Obligors shall not enter into any transaction with any Affiliate of the Borrowers involving the payment or transfer of any property in excess of $7,500,000, other than (a) transactions no less
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favorable in any material respect to such Obligor or such Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate of such Obligor or such Subsidiary, (b) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, (c) transactions between or among the Obligors and their Subsidiaries, (d) transactions permitted or approved by a Department, (e) any Restricted Payment permitted by Section 7.06 or any Investment or Acquisition permitted by Section 7.07, (f) arrangements for indemnification payments for directors and officers of the Obligors, (g) intercompany transactions between or among the Obligors or their Subsidiaries, that are (x) relating to the (i) provision of management services and other corporate overhead services, (ii) provision of personnel to other locations within the Parent’s consolidated group on a temporary basis and (iii) provision, purchase or lease of services, cash management services, operational support, assets, equipment, data, information and technology, that, in the case of any such intercompany transaction referred to in this clause (g), are subject to reasonable reimbursement or cost-sharing arrangements (as determined in good faith by the Borrowers), which reimbursement or cost-sharing arrangements may be effected through transfers of cash or other assets or through book-entry credits or debits made on the ledgers of each involved Subsidiary; provided that any such intercompany transaction is either (1) entered into in the ordinary course of business or (2) otherwise entered into pursuant to the reasonable requirements of the business of the Parent or the Subsidiaries or (y) otherwise permitted pursuant to this Article 7, (h) ordinary course business transactions (other than transactions of the type described in clause (c) or (g) above) that (A) do not involve the sale, transfer or other Disposition of operations or assets and (B) do not materially and adversely affect the Lenders, (i) Indebtedness and Investments among the Obligors and their Subsidiaries to the extent permitted under Article 7), (j) employment and severance arrangements for and compensation, bonuses, stock options and stock ownership plans and indemnification arrangements and benefit plans (and the making of payments, awards or grants in cash, securities or otherwise pursuant thereto or the funding thereof) for officers, directors, employees, managers and consultants of the Parent and its Subsidiaries approved by the board of directors or equivalent body of the Parent or its Subsidiary, (k) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers, employees, managers and consultants of the Parent and its Subsidiaries in the ordinary course of business, (l) the furnishing of services by the Parent or any Subsidiary to or for the benefit of the Parent or any other Subsidiary in the ordinary course of business and (m) intercompany transactions pursuant to the Aurora Transaction Agreements.
Section 7.5.Fundamental Changes.
The Obligors shall not merge, consolidate, amalgamate, or sell all or substantially all of the assets of the Obligors taken as a whole, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except (a) in connection with (i) a Disposition otherwise permitted by Section 7.03 (other than Section 7.03(i)(A) or Section 7.03(m)), (ii) an Investment permitted by Section 7.07 or (iii) a Restricted Payment permitted by Section 7.06. Notwithstanding the foregoing, in no event shall the Obligors be permitted to reorganize in a jurisdiction outside of the United States.
Section 7.6.Restricted Payments.
The Obligors shall not declare or pay any dividend on (or make any payment to a related trust for the purpose of paying a dividend), or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of such Obligor (or any related trust), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of such Obligor (collectively, “Restricted Payments”) (it being understood, for the avoidance
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of doubt, that payments by any Obligor pursuant to intercompany loans or notes, intercompany tax and expense sharing arrangements and intercompany services agreements, in each case in the ordinary course of business and consistent with past practice shall not constitute Restricted Payments), except that:
(a)any Borrower may declare or pay dividends, distributions and make any other payments with respect to its Capital Stock to the Parent and to any other Borrower;
(b)the Parent and the Borrowers may pay dividends solely in the form of shares of its Capital Stock (other than Disqualified Capital Stock), including through stock splits, reverse stock splits, share consolidations and similar transactions;
(c)the Obligors may make Restricted Payments, so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the aggregate amount of Restricted Payments pursuant to this Section 7.06(c) shall not exceed $7,500,000;
(d)the Parent and each Borrower may make cash payments in lieu of fractional shares in connection with the exercise of warrants, options or other securities, convertible into or exchangeable for Capital Stock or arising out of stock dividends, splits, combinations or business combinations and may exchange debt securities for other debt securities provided that there is no cash payment made in connection therewith;
(e)the Parent and each Borrower may pay (or make Restricted Payments to allow the Parent or any other direct or indirect parent thereof to pay) for the repurchase, redemption or other acquisition or retirement for value of Capital Stock of the Parent or such Borrower (or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of the Parent or such Borrower (or any other direct or indirect parent thereof) or any of their respective Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, officer, director, manager or consultant of the Parent or such Borrower (or any other direct or indirect parent thereof) or any of their respective Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (e) shall not exceed an amount equal to $20,000,000, which amount shall be increased by:
(i)to the extent contributed to the Parent or such Borrower, the net cash proceeds from the sale after the Closing Date of Capital Stock (other than Disqualified Capital Stock) of the Parent or such Borrower (or any other direct or indirect parent thereof), in each case to any employee, officer, director, manager or consultant of the Parent or any of the Borrowers or any direct or indirect parent thereof; plus
(ii)the net cash proceeds of key man life insurance policies received after the Closing Date by the Parent or the Borrowers;
(f)the Parent and each Borrower may (i) purchase and repurchase Capital Stock issued by it upon the vesting of equity awards pursuant to the Parent and the Borrowers’ equity incentive plans or programs, (ii) make Restricted Payments in the form of equity pursuant to and in accordance with equity compensation plans or programs and other benefit and compensation plans, programs or agreements for any employee, officer, director, manager or consultant of the Parent and the Borrowers, (iii) make non-cash repurchases of its Capital Stock occurring upon exercise of stock options or warrants or the settlement or vesting of other awards if such Capital Stock represents a portion of the exercise price of such options or warrants or similar equity incentive awards, (iv) purchase, redeem or otherwise acquire
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Capital Stock issued by it with the proceeds received from the substantially concurrent issue of new shares of its Capital Stock (other than Disqualified Capital Stock), (v) distribute rights pursuant to a stockholder rights plan or redeem such rights in accordance with the terms of such plan and (vi) engage in net-settled share transactions involving Capital Stock of the Parent or such Borrower in connection with the payment of withholding taxes in connection with equity compensation plans or programs and other benefit and compensation plans, programs or agreements for any employee, officer, director, manager or consultant;
(g)the Parent may conduct any repurchase or redemption of its Capital Stock in an aggregate principal amount not exceeding $15,000,000 (a “Specified Stock Buybacks”); and
(h)the Parent may pay any dividend within 60 days after the date of declaration thereof; provided that on the date of declaration such payment shall comply with one of the exceptions to this Section 7.06 listed in clauses (a) through (g) thereof.
Notwithstanding the foregoing, if an Event of Default has occurred and continuing, Cirrata V and Cirrata UK shall not be permitted to make Restricted Payments to the Parent with the proceeds of Restricted Payments from the Company (excluding, for the avoidance of doubt, payments made to the Parent in connection with any Tax payable or suffered in respect of or in consequence of such proceeds).
Section 7.7.Investments and Acquisitions.
The Obligors shall not make any Acquisition or hold or make any other Investment in any other Person, except:
(a)Investments in existence on the Closing Date and commitments to make Investments existing on the Closing Date and, in the case of any Investment or commitment in excess of $10,000,000 (other than Investments in the Parent and its Subsidiaries on the Closing Date), which are listed on Schedule 7.07;
(b)Investments consisting of non-cash consideration received in connection with a Disposition not prohibited by the Loan Documents;
(c)Investments (i) constituting deposits, prepayments and other credits to suppliers in the ordinary course of business, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts in the ordinary course of business, (iii) in the form of advances made to distributors, suppliers, licensors, licensee, lessors, lessees, sub-lessors and sub-lessees in the ordinary course of business, (iv) received in connection with the bankruptcy or reorganization of customers and suppliers in the ordinary course of business or as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes and (v) obtained through foreclosure or otherwise through the exercise of remedies in respect of obligations owed by a third party to the Parent or any of the Borrowers or otherwise in respect of mortgage loans insured by the Parent or any of the Borrowers;
(d)(i) Investments consisting of Contingent Obligations permitted by Section 7.01, (ii), Investments consisting of Contingent Obligations in respect of obligations other than Indebtedness, or (iii) Investments consisting of Indebtedness permitted by Section 7.01 (other than Section 7.01(g));
(e)Investments that were Cash Equivalents when made;
(f)Investments by the Parent and the Borrowers in the ordinary course of business consistent with the investment policies of the Parent or such Borrower, as applicable, in effect from time to time;
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(g)Investments by the Parent or any Borrower in the Parent or any Subsidiary; provided that the aggregate amount of Investments in Subsidiaries that are not Obligors shall not exceed at any time outstanding $10,000,000;
(h)security deposits or pledges held or made in the ordinary course of business;
(i)loans and advances in the ordinary course of business to employees for moving, relocation or travel purposes, in each case subject to compliance with the Requirements of Law;
(j)Permitted Swap Obligations;
(k)Investments not otherwise permitted hereby in an aggregate amount not to exceed at any time outstanding $40,000,000;
(l)any Investment required pursuant to any Requirement of Law;
(m)[reserved];
(n)Investments in any Subsidiary in connection with reorganizations and related activities related to tax or other corporate planning; provided that, after giving effect to any such reorganization and related activities, the security interest of the Agent in the Collateral is not materially impaired;
(o)Investments pursuant to or in connection with the Transactions; and
(p)Investments pursuant to any put options or call options set out in a shareholders’ agreement in respect of any joint venture in which an Obligor has a direct or indirect interest.
Section 7.8.Prepayment of Certain Indebtedness; Modifications of Certain Agreements.
(a)The Obligors shall not make any payment or other distribution (whether in cash, securities or other property, and including optional prepayments and open market purchases) of or in respect of principal of any Indebtedness of the Parent or the Borrowers that is or is required to be contractually subordinated in right of payment or with respect to security to the Obligations or is unsecured (collectively, the “Junior Financing”), in each case in an aggregate principal amount in excess of $5,000,000, other than (i) payment of regularly scheduled interest payments as and when due in respect thereof, (ii) the payment of principal as and when due in respect thereof, (iii) to the extent an Obligor could make a Restricted Payment under Section 7.06(c), an equal amount (with any payment pursuant to this clause (iii) being deemed to be a Restricted Payment under Section 7.06(c) and utilization of capacity thereunder), (iv) to the extent the consideration thereof consists of Capital Stock (other than Disqualified Capital Stock) of the Parent or any Borrower, (v) payment of Indebtedness owed to the Parent or any Borrowers, (vi) subject to the terms of the Global Note, payment of Indebtedness owed to any Subsidiary of the Parent that is not an Obligor and (vii) other such payments or distributions to the extent not in excess of $5,000,000;
(b)The Obligors shall not amend or modify their respective Organization Documents, other than any amendments or modifications which are not adverse in any material respect to the interests of the Lenders without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
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Section 7.9.Minimum Consolidated Net Worth.
Parent will not permit the Consolidated Net Worth of Parent and its Subsidiaries as of the last day of any Fiscal Quarter, commencing with the Fiscal Quarter ending September 30, 2024, to be less than $700,000,000.
Section 7.10.Restrictive Agreements.
The Obligors will not, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Obligor to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Borrower to pay dividends or other distributions with respect to holders of its Capital Stock or to make or repay loans or advances to the Parent or any other Borrower; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or Governmental Authority, regulations or regulatory directives (including, for the avoidance of doubt, “financial requirements” imposed pursuant to agreements or other arrangements with regulatory authorities) or by any Loan Document, (ii) the foregoing shall not apply to customary restrictions and conditions contained in agreements or other arrangements relating to the sale of assets pending such sale, provided such restrictions and conditions apply only to such assets that are to be sold and such agreement is not prohibited hereunder, (iii) the foregoing shall not apply to restrictions or conditions imposed by, or rights arising under, any Swap Agreement permitted or not restricted by this Agreement, any reinsurance agreement or retrocession agreement permitted or not restricted by this Agreement, any agreement relating to Indebtedness permitted or not restricted by this Agreement, or any transaction giving rise to a Lien permitted or not restricted by this Agreement, (iv) clause (a) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (v) this Section 7.10 shall not apply to (A) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements or other arrangement, including with respect to intellectual property and other agreements or other arrangements, in each case entered into in the ordinary course of business; provided that such provisions apply only to the assets that are the subject of such lease, sub-lease, license, sub license or other agreement or other arrangement and shall not apply to any other assets of the Parent or any Borrower, and (vi) the foregoing shall not apply to the arrangements set forth on Schedule 7.10 hereto and other agreements and arrangements, to the extent approved by the Agent for purposes of this Section 7.10, entered into by the Obligors from time to time.
Article 8
Events Of Default
Section 8.1.Events of Default.
Each of the following shall constitute an “Event of Default”:
(a)Non-Payment. The Borrowers fail to pay (i) when and as required to be paid herein, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, any amount of principal of any Loan, (ii) within three (3) days after the same becomes due, any interest or fee payable hereunder or under any other Loan Document or (iii) any other amount payable hereunder or under any other Loan Document when due and such failure continues for a period of five (5) days after the date upon which written notice thereof is given to the Borrower Representative by the Agent or the Required Lenders; or
(b)Representation or Warranty. Any representation or warranty made or deemed made by or on behalf of the Parent or any Borrower pursuant to any Loan Document or in any certificate or other
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document furnished by (or on behalf of) the Borrowers pursuant to any Loan Document shall prove to have been incorrect in any material respect when made or deemed made; or
(c)Specific Defaults. Any Obligor fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a), Section 6.04 (with respect to any Obligor’s corporate existence) or Article 7; or
(d)Other Defaults. The Parent or any Borrower fails to perform or observe any other term or covenant contained in this Agreement or any other Loan Document, and such default shall continue unremedied for a period of 30 days after the earlier of (i) actual knowledge by any Borrower of any such default and (ii) the date upon which written notice thereof is given to the Borrower Representative by the Agent or the Required Lenders; or
(e)Cross-Default. (i) The Parent or any Borrower (A) fails to make any payment in respect of any Indebtedness (other than the Obligations) having an aggregate outstanding principal amount of more than the Threshold Amount (in the aggregate for all such Indebtedness), when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) after giving effect to any applicable grace period; or (B) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness (and, in each case, such failure or event continues after the applicable grace or notice period, if any, specified in the relevant document) if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such Indebtedness to be declared to be due and payable prior to its stated maturity; or (ii) (w) an Event of Default (as defined in an applicable Swap Contract) occurs under any Swap Contract as to which the Parent or any Borrower is the Defaulting Party (as defined in such Swap Contract) and the Non-defaulting Party (as defined under such Swap Contract) has designated an Early Termination Date (as defined in such Swap Contract) for all outstanding transactions under such Swap Contract as a result of such Event of Default and (x) the Swap Termination Value is greater than the Threshold Amount (in the aggregate for all such Swap Contracts); provided that (A) any failure, event or condition described in this Section 8.01(e) shall not at any time constitute an Event of Default unless, at such time, such failure, event or condition is unremedied and not waived by the holders of such Indebtedness or Swap Contract and (B) this clause (e) shall not apply to (1) secured Indebtedness that becomes due as a result of the Disposition of the property or assets (as permitted hereunder) securing such Indebtedness or that are the subject of such Swap Contract, (2) any guarantee that is satisfied promptly upon demand, (3) any voluntary prepayment, redemption, repurchase, conversion or settlement permitted hereunder with respect to any debt security, debt instrument or Swap Contract pursuant to its terms unless such prepayment, redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that otherwise constitutes an Event of Default or (4) any payment coming due or payable as a result of a change of control not constituting an Event of Default pursuant to subsection (k) below; or
(f)Insolvency; Voluntary Proceedings. Any Obligor (i) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) commences any Insolvency Proceeding with respect to itself; (iii) applies for or consents to the appointment of a receiver, interim receiver, trustee, monitor, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or for a substantial and material part of its assets, or (iv) takes any action to effectuate or authorize any of the foregoing; provided that, for purposes of clarity, no liquidation, dissolution, reorganization or winding up of any Person (whether pursuant to a corporate or similar statute or a proceeding before a Governmental
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Authority or otherwise) for purposes other than a settlement or compromise for the benefit of creditors shall constitute an Event of Default to the extent permitted by Section 7.05; or
(g)Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced or filed against the Parent or any Borrower, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Parent’s or any Borrower’s properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) the Parent or any Borrower admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) the Parent or any Borrower acquiesces in the appointment of a receiver, interim receiver, trustee, monitor, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial and material portion of its property or business; or (iv) any Borrower shall become subject to any conservation, rehabilitation or liquidation order, directive or mandate issued by any Governmental Authority; provided that, for purposes of clarity, no liquidation, dissolution, reorganization or winding up of any Person (whether pursuant to a corporate or similar statute or a proceeding before a Governmental Authority or otherwise) for purposes other than a settlement or compromise for the benefit of creditors shall constitute an Event of Default to the extent permitted by Section 7.05; or
(h)Pension Plans. Any ERISA Event has occurred that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect, or steps are taken to terminate any Multiemployer Plan and such termination would reasonably be expected to result in a Material Adverse Effect; or
(i)Material Judgments. One or more judgments or decrees shall be entered against the Parent or any of the Borrowers involving in the aggregate a liability (to the extent not paid or covered by insurance as to which the relevant insurance company has not denied coverage or by a creditworthy (as reasonably determined by the Borrowers) indemnitor) of the Threshold Amount or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof, or any action shall be taken by a judgment creditor to attach or levy upon a substantial and material part of the assets of any Obligors to enforce any such judgment or decree; or
(j)Change of Control. There occurs any Change of Control; or
(k)Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations (other than contingent Obligations), ceases to be in full force and effect; or any Obligor contests in writing the validity or enforceability of any provision of any Loan Document; or any Obligor denies in writing that it has any or further liability or obligation under any material provision of any Loan Document, or purports to revoke, terminate or rescind any material provision of any Loan Document; or
(l)Liens. Any Lien on the material assets of the Obligors purported to be created under any Security Document shall cease to be, or shall be asserted by any Obligor in writing not to be, a valid and perfected Lien on any Collateral covered thereby, with the priority required by the applicable Security Document (except as a result of a sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or as a result of the Agent’s failure to maintain possession of any stock certificates, promissory notes or other documents or possessory collateral delivered to it under any Security Document or to file or continue any UCC or similar statements).
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Section 8.2.Remedies.
If any Event of Default shall have occurred and be continuing, the Agent shall, at the request of, or may, with the consent of, the Required Lenders,
(a)declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, whereupon such Loans, all interest accrued and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan Document shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; and
(b)exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;
provided that upon the occurrence of any event specified in Section 8.01(f) or Section 8.01(g) with respect to the Obligors (upon the expiration of the 60-day period mentioned therein, if applicable), the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers.
Section 8.3.Rights Not Exclusive.
The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.
Section 8.4.Clean-up Period
(a)Notwithstanding anything to the contrary in this Agreement or any other provision of the Loan Documents, if there exists any matter or circumstance with respect to the Company and its Subsidiaries that was in existence on or prior to the date the relevant acquisition of the Company was consummated (and not, for the avoidance of doubt, occurring or arising after such date) and would constitute or otherwise cause a Default or an Event of Default (any such matter or circumstance, a “Relevant Matter”), then during the Clean-up Period (A) such Relevant Matter shall not constitute a breach of a representation, covenant or any other term or condition of any Loan Document, and shall not constitute a Default or an Event of Default, (B) such Relevant Matter shall not cause any condition to Credit Extensions hereunder to not be satisfied (and shall not otherwise prevent the Borrower from making any borrowing under this Agreement), and (C) the Agent shall not be entitled to exercise any rights or remedies under Section 8.01 with respect to such Relevant Matter. For the avoidance of doubt, if such Relevant Matter is continuing after the expiration of the Clean-up Period, then any relevant Default or Event of Default, as applicable, shall be deemed to have occurred and be continuing as of the applicable Clean-up Expiration Date notwithstanding the above and all other rights and remedies shall be available and exercisable.
(b)Paragraph (a) above shall not apply with respect to any Relevant Matter to the extent that it:
(i)would have, or would be reasonably likely to have, a Material Adverse Effect;
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(ii)has been knowingly procured by or approved by the board of directors (or equivalent body) of the Parent or the Borrower or any Subsidiary of the Parent (other than the Company or its Subsidiaries) (provided that knowledge of the existence Relevant Matter does not equate to procurement or approval); or
(iii)is not capable of being cured.
Article 9
The Agent
Section 9.1.Appointment and Authority.
Each of the Lenders hereby irrevocably appoints UBS AG, Stamford Branch to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article (other than as set forth in Section 9.05, Section 9.06, Section 9.09 and Section 9.10) are solely for the benefit of the Agent and the Lenders, and neither the Borrowers nor any other Obligor shall have rights as a third party beneficiary of any of such provisions.
Section 9.2.Rights as a Lender.
The Person serving as the 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the 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 Parent or any Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.
Section 9.3.Exculpatory Provisions.
No Agent-Related Person shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent-Related Person:
(a)shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)shall 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, with respect to the 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 no Agent-Related Person shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent-Related Person to liability or that is contrary to any Loan Document or applicable law; and
(c)shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, shall be liable for the failure to disclose, any information relating to the Borrowers or any of its Affiliates that is communicated to or obtained by the Person serving as the Agent, any Agent-Related Person or any of their respective Affiliates in any capacity.
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No Agent-Related Person shall be liable for any action taken or not taken by it (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 such Agent-Related Person shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of such Agent-Related Person’s own gross negligence or willful misconduct. No Agent-Related Person shall be deemed to have knowledge of any Default unless and until notice describing such Default is given to such Agent-Related Person by the Borrower Representative or a Lender.
No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with 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, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent-Related Person.
Section 9.4.Reliance by the Agent.
The 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 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 Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section 9.5.Delegation of Duties.
The 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 Agent. The 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 Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent.
Section 9.6.Resignation of the Agent.
The Agent may at any time give notice of its resignation to the Lenders and the Borrower Representative. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the consent of the Borrower Representative, 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 and shall have accepted such appointment within thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above with the consent of the Borrower Representative; provided that if the Agent shall notify the Borrower Representative and the
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Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring 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 Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time as a successor Agent shall be appointed as provided for above in this Section 9.06. Upon the acceptance of a successor’s appointment as the Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) the Agent, and the retiring 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 9.06). The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Sections 10.04 and 10.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as the Agent.
Section 9.7.Non-Reliance on the Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance upon any Agent- Related Person or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent-Related Person or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Section 9.8.No Other Duties, Etc.
Anything herein to the contrary notwithstanding, the Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents.
Section 9.9.The Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Obligor, the 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 Agent shall have made any demand on the Borrowers) 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 Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agent and their respective agents and counsel and all other amounts due the Lenders and the Agent under Sections 2.07, 10.04 and 10.05) allowed in such judicial proceeding; and
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(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 Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections 2.07, 10.04 and 10.05.
Nothing contained herein shall be deemed to authorize the 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 or to authorize the Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.10.Collateral and Guaranty Matters.
The Lenders irrevocably authorize and instruct the Agent to release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon payment in full of all Obligations (other than contingent indemnification obligations for which no claim has been made) and the expiration or termination of all Commitments, (ii) that is transferred, sold or otherwise disposed of or to be transferred, sold or otherwise disposed of (other than to the Borrowers or the Guarantor) as part of or in connection with any transfer, sale or other disposal permitted hereunder or under any other Loan Document; or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders; and
Upon request by the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to release its interest in particular types or items of property. In each case as specified in this Section 9.10, upon the receipt of a certificate of a Responsible Officer of the Borrower Representative certifying that such release is permitted hereunder (on which the Agent may conclusively rely without any further inquiry) the Agent will (and each of the Lenders irrevocably authorizes and directs the Agent to), at the Borrowers’ expense, execute and deliver to the applicable Obligor such documents or take any action as such Obligor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents in accordance with the terms of the Loan Documents and this Section 9.10.
Section 9.11.Indemnification of Agent-Related Persons.
Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective portions of the total Loans held on the date on which indemnification is sought, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful misconduct; and provided, further, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.11. Without limitation of the foregoing, each Lender shall reimburse each Agent-Related Person upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by such Agent-Related Person in connection with the preparation, execution, delivery, administration,
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modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document or any document contemplated by or referred to herein, to the extent that such Agent-Related Person is not reimbursed for such expenses by or on behalf of the Borrowers. The undertaking in this Section 9.11 shall survive the payment of all other Obligations and the resignation of the Agent or any Agent-Related Person.
Section 9.12.Withholding Tax.
The Agent agrees to act as the U.S. federal withholding Tax agent with respect to all amounts payable by it under the Loan Documents. The Agent shall withhold from any payment to any Lender an amount equal to any withholding Tax required to be withheld by any applicable law. If the IRS or any Governmental Authority asserts a claim that the Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Agent (to the extent that the Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Agent under this Article 9. The agreements in this Article 9 shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender.
Section 9.13.Certain ERISA Matters.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Obligor, that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s
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entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(i)(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Obligor, that the Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 9.14.Erroneous Payments.
(a)If the Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Agent pending its return or repayment as contemplated below in this Section 9.14 and held in trust for the benefit of the Agent, and such Lender or Secured Party 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 Business Days thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the 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 (except to the extent waived in writing by the Agent) 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 Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with
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banking industry rules on interbank compensation from time to time in effect. A notice of the Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b)Without limiting immediately preceding clause (a), each Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party 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 Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the 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 Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(i)it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake 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 or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 9.14(b).
For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9,14(a) or on whether or not an Erroneous Payment has been made.

(c)Each Lender or Secured Party hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Agent to such Lender or Secured Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Agent has demanded to be returned under immediately preceding clause (a).
(d)(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor 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 Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Loans with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Loans of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such instance)), and is hereby (together with the Borrower Representative) deemed to execute and deliver an Assignment and Assumption with respect to
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such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower Representative or the Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement which shall survive as to such assigning Lender, (D) the Agent and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment.
(ii)    Subject to Section 11.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrowers or otherwise)), the 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 Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e)The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Obligors’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers or any other Obligor; provided that this Section 9.14 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Agent from the Borrowers 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 set-off or recoupment with respect to any demand, claim or counterclaim by the
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Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.
(g)Each party’s obligations, agreements and waivers under this Section 9.14 shall survive the resignation or replacement of the Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
Article 10
Guaranty
Section 10.1.Guaranty of the Obligations.
The Guarantor hereby irrevocably and unconditionally guaranties to the Agent for the ratable benefit of the Secured Parties the due and punctual payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of (i) the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code and (ii) any other Debtor Relief Laws) on the Loans made by the Lenders to the Borrowers, and all other Obligations from time to time owing to the Secured Parties by any Obligor under any Loan Document, in each case, strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”).
Section 10.2.Payment by Guarantor.
The Guarantor hereby agrees, in furtherance of the foregoing and not in limitation of any other right which any Secured Party may have at law or in equity against any Person, that upon the failure of any Borrower to pay in full any of the Guaranteed Obligations when and as the same shall become due (after giving effect to any applicable grace periods), whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any other Debtor Relief Law), the Guarantor will promptly pay, or cause to be paid, in cash to the Agent for the ratable benefit of Secured Parties without any demand or notice whatsoever, an amount equal to the full unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for any Borrower becoming the subject of a case under the Bankruptcy Code or any other Debtor Relief Law, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against such Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Secured Parties as aforesaid and in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. Any payment made in accordance with this section shall be without defense, recoupment, setoff or counterclaim, free of any restriction or condition (other than Payment in Full of the Guaranteed Obligations).
Section 10.3.Liability of Guarantor Absolute.
The Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and, to the extent permitted by applicable law, shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than Payment in Full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, the Guarantor agrees as follows:
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(a)this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of the Guarantor and not merely a contract of surety;
(b)the Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any Borrower and any Secured Party with respect to the existence of such Event of Default;
(c)the obligations of the Guarantor hereunder are independent of the obligations of any Borrower and the obligation of any other guarantor of the obligations of any Borrower;
(d)payment by any Person of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge the Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Agent is awarded a judgment in any suit brought to enforce the Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release the Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit;
(e)any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to the Guarantor;
(f)any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise in any way to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may:
(i)renew, extend, accelerate, increase the principal amount of, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations in accordance with the terms of the underlying Loan Documents (including, without limitation, any amendment thereto, consent to departure therefrom, or waiver thereof);
(ii)settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations;
(iii)request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations;
(iv)in accordance with the terms of the underlying Loan Documents (including any amendment thereto, consent to departure therefrom, or waiver thereof), release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person with respect to the Guaranteed Obligations;
(v)enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case, as such Secured Party in its discretion may determine consistent herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish
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any right of reimbursement or subrogation or other right or remedy of the Guarantor against any Borrower or any security for the Guaranteed Obligations; and
(vi)exercise any other rights available to it under the Loan Documents;
(g)this Guaranty and the obligations of Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than Payment in Full of the Guaranteed Obligations), including the occurrence of any of the following, whether occurring before, upon or after any demand for payment hereunder, and whether or not the Guarantor shall have had notice or knowledge of any of them: (i) the asserting or enforcing of any right, power or remedy (whether arising under the Loan Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto or with respect to any other guarantee of or security for the payment of the Guaranteed Obligations; (ii) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents and/or at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (iii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) of this Agreement, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case, whether or not in accordance with the terms hereof or such Loan Document or any agreement relating to such other guaranty or security; (iv) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (v) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (vi) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of any Obligor or any of its Subsidiaries, any change in the ownership, control, name, objects, business or assets of any Obligor, any corresponding restructuring of the Guaranteed Obligations; any amalgamation or consolidation of any Obligor with any other Person or the consent thereto by any Secured Party to the extent that such actions are not permitted hereunder; (vii) any failure to perfect or continue perfection (or the release) of any Lien in any collateral which secures any of the Guaranteed Obligations; (viii) any defenses, set-offs or counterclaims which any Obligor may allege or assert against any Secured Party or any other Obligor or Person in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (ix) any limitation of status or power, disability, in capacity or other circumstance relating to any other Obligor or any other Person, including any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, winding-up or other proceeding involving or affecting any other Obligor or any other Person; and (x) other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of the Guarantor as an obligor in respect of the Guaranteed Obligations.
Section 10.4.Waivers by Guarantor.
The Guarantor hereby waives, to the extent permitted by applicable law, for the benefit of the Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by the Guarantor, to (i) proceed against any Borrower, any other guarantor of the Guaranteed Obligations or
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any other Person, (ii) proceed against or exhaust any security held from any Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Secured Party in favor of any Borrower or any other Person, or (iv) pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of any Borrower or any other Person including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Borrower or any other Person from any cause other than Payment in Full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad faith, gross negligence or willful misconduct (as determined in a final and non-appealable judgment by a court of competent jurisdiction); (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of the Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) except as expressly set forth herein, all notices, demands, presentments, protests, notices of protest, notices of dishonor or non-payment, notices or proof of reliance, and notices of any action or inaction, including acceptance hereof, notices of default hereunder or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to the Borrowers and notices of any of the matters referred to in Section 10.03 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
Section 10.5.Guarantor’s Rights of Subrogation, Etc..
Until the Guaranteed Obligations shall have been Paid in Full and all Commitments shall have terminated, the Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against any Borrower or any other guarantor of the Obligations or any of its assets in connection with this Guaranty or the performance by the Guarantor of its obligations hereunder, in each case, whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (a) any right of subrogation, reimbursement or indemnification that the Guarantor now has or may hereafter have against any Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may hereafter have against any Borrower, and (c) any benefit of, and any right to participate in, any Collateral or security now or hereafter held by any Secured Party. In addition, until the Guaranteed Obligations shall have been Paid in Full and all Commitments shall have terminated, the Guarantor shall withhold exercise of any right of contribution the Guarantor may have against any other guarantor of the Guaranteed Obligations. The Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification the Guarantor may have against any Borrower or against any collateral or security, and any rights of contribution the Guarantor may have against any such other guarantor, shall be junior and subordinate in right of payment and security to any rights any Secured Party may have against any Borrower, to all right, title and interest any Secured Party may have in any such collateral or security, and
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to any right any Secured Party may have against such other guarantor. If any amount shall be paid to the Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been Paid in Full, such amount shall be held in trust for the Agent on behalf of the Secured Parties and shall forthwith be paid over to the Agent for the benefit of the Secured Parties to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
Section 10.6.Subordination of Other Obligations.
Any Indebtedness of any Borrower now or hereafter held by (or owing to) any the Guarantor is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the Guarantor after an Event of Default has occurred and is continuing shall be held in trust for the Agent on behalf of the Secured Parties and, upon notice from the Agent acting at the direction of the Required Lenders (other than upon the occurrence of any Event of Default described in Section 8.01(f) or 8.01(g) in which case no notice shall be required), shall forthwith be paid over to the Agent for the benefit of the Secured Parties to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.
Section 10.7.Continuing Guaranty.
This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations shall have been Paid in Full and all Commitments shall have terminated. The Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations prior to the Payment in Full of the Guaranteed Obligations and the termination of the Commitments.
Section 10.8.Authority of Guarantor or Borrowers.
It is not necessary for any Secured Party to inquire into the capacity or powers of the Guarantor or any Borrower or the officers, directors or any agents acting or purporting to act on behalf of any of them.
Section 10.9.Financial Condition of Borrowers.
Any Credit Extension may be made to the Borrowers or continued from time to time without notice to or authorization from the Guarantor regardless of the financial or other condition of any Borrower at the time of any such grant or continuation. No Secured Party shall have any obligation to disclose or discuss with the Guarantor its assessment of the financial condition of any Borrower. The Guarantor has adequate means to obtain information from each Borrower on a continuing basis concerning the financial condition of such Borrower and its ability to perform its obligations under the Loan Documents, and the Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Borrowers and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. The Guarantor hereby waives and relinquishes any duty on the part of any Secured Party to disclose any matter, fact or thing relating to the business, operations or conditions of any Borrower now known or hereafter known by any Secured Party.
Section 10.10.Bankruptcy, Etc..
(a)The obligations of Guarantor hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of any
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Borrower or by any defense which any Borrower may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.
(b)The Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of the Guarantor and the Secured Parties that the Guaranteed Obligations which are guaranteed by the Guarantor pursuant hereto should be determined without regard to any rule of law or order which may relieve any Borrower of any portion of such Guaranteed Obligations. The Guarantor will in such capacity permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay the Agent, or allow the claim of the Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
(c)In the event that all or any portion of the Guaranteed Obligations are paid by any Borrower, the obligations of the Guarantor hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Secured Party as a preference, fraudulent transfer or otherwise and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
Section 10.11.Release of Guarantor.
The Guaranty made herein shall remain in full force and effect until the Obligations have been Paid in Full and the Commitments have been terminated, at which time the Guarantor shall be automatically released from its obligations under this Agreement and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document.
Section 10.12.Remedies.
The Guarantor agrees that, as between the Guarantor and the Secured Parties, the obligations of the Borrowers under this Agreement may be declared to be forthwith due and payable as provided in Section 8.01 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 8.01) for purposes of Section 10.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrowers and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrowers) shall forthwith become due and payable by the Guarantor for purposes of this Article 10.
Section 10.13.Instrument for the Payment of Money.
The Guarantor hereby acknowledges that the guaranty in this Article 10 constitutes an instrument for the payment of money, and consents and agrees that any Lender or the Agent, at its sole option, in the event of a dispute by the Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
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Section 10.14.General Limitation on Guaranty Obligations.
In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other applicable law affecting the rights of creditors generally, if the obligations of the Guarantor under Section 10.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 10.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by the Guarantor, any Borrower or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the liability under this Guaranty, but before giving effect to any other guarantee) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Article 11
Miscellaneous
Section 11.1.Amendments and Waivers.
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Obligor therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Obligor, as the case may be, and acknowledged by the Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:
(a)extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;
(b)postpone or delay the maturity of the Loans, or any scheduled date of payment of the principal amount of the Loans, or any date for the payment of any interest, premium or fees due to the Lenders (or any of them) hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, without the written consent of each Lender directly and adversely affected thereby (other than as a result of (i) waiving an Event of Default in accordance with the terms hereof, (ii) waiving default interest hereunder to the extent a waiver of the underlying default giving rise to such default interest does not require a vote of all Lenders, (iii) rescinding the acceleration of the Loans under Section 8.02 or (iv) waiving a mandatory prepayment to be made hereunder);
(c)amend the definition of “Required Lenders” without the consent of each Lender;
(d)[reserved];
(e)release all or substantially all of the Collateral from the Transaction Liens or all or substantially all of the value of the Guarantee (except (i) as expressly permitted under the Loan Documents or (ii) in connection with a “credit bid” undertaken by the Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 11.29(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release), without the written consent of each Lender;
(f)amend this Section 11.01 without the written consent of each Lender;
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(g)change Section 2.11 or amend the definition of “Pro Rata Share” in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby;
(h)consent to the assignment or transfer by any Borrower of any of its rights and obligations under any Loan Document without the written consent of each Lender;
(i)amend, modify, terminate or waive any provision of the Loan Documents as the same applies to the Agent or the Arranger, or any other provision hereof as the same applies to the rights or obligations of the Agent or the Arranger, in each case without the consent of the Agent or Arranger, as applicable;
provided, further, that any fee agreement referred to in Section 2.08 may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto.
Notwithstanding anything to the contrary in this Agreement (including, without limitation, this Section 11.01) or any other Loan Document to the contrary, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except for any amendment, waiver or consent pursuant to Section 11.01(a), (b) or (c); (ii) this Agreement and the other Loan Documents may be amended, restated, amended and restated, supplemented, or otherwise modified to effect any changes contemplated by Section 3.08, including any Conforming Changes (and the Agent and the Borrowers may effect such amendments to this Agreement and the other Loan Documents without the consent of any other party as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrowers, in accordance with Section 3.08, including any technical and conforming modifications to the Loan Documents to the extent necessary); (iii) no Lender consent is required to effect any amendment or supplement to any intercreditor or subordination agreement or arrangement permitted under this Agreement that is for the purpose of adding the holders of any Indebtedness as expressly contemplated by the terms of such intercreditor or subordination agreement or arrangement permitted under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor or subordination agreement as, in the good faith determination of the Agent, are required to effectuate the foregoing so long as such other changes are not materially adverse to the interests of the Lenders) (iv) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrowers and the Agent only to cure any ambiguity, omission, mistake, defect or inconsistency; and (v) guarantees, collateral documents and related documents executed by the Obligors in connection with this Agreement may be in a form reasonably determined by the Agent and may be, together with any other Loan Document, entered into, amended, restated, amended and restated, supplemented, waived or otherwise modified, without the consent of any other Person, by the applicable Obligor or Obligors and the Agent in its sole discretion, to (A) effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit the Secured Parties, (B) as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable requirements of law, or (C) to cure ambiguities, omissions, mistakes, defects or inconsistencies or to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents; provided that with respect to clause (ii)(A), (iii), (iv) and (v) above, the Agent may in its discretion seek approval for such changes from the Lender and such amendment shall be deemed approved by the Lenders if the Lenders shall have received at least five (5) Business Days’ prior written notice of such change and the 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.
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Section 11.2.Notices.
(a)Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile or electronic transmission). All such written notices shall be mailed, emailed, faxed or delivered to the applicable address, facsimile number (provided that any matter transmitted by facsimile (1) shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 11.02, and (2) shall be followed promptly by delivery of a hard copy original thereof) or (subject to subsection (b) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)if to the Borrowers or the Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(ii)if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its administrative questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower Representative and the Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the U.S. mails, via certified mail, return receipt requested, postage prepaid; (C) if delivered by facsimile or electronic mail, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (b) below), when delivered; provided that notices and other communications to the Agent pursuant to Article 2 shall not be effective until actually received by such Person. In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.
(b)Electronic Communications:
(i)Notices and other communications to the Agent and the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Agent; provided that the foregoing shall not apply to notices to the Agent or, any Lender pursuant to Article 2 if such Person has notified the Agent that it is incapable of receiving notices under such Article by electronic communication. The Agent or the Borrowers 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. Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
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(ii)The Parent and each of its Subsidiaries understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent that such losses, costs, expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, willful misconduct or bad faith of the Agent or its Related Persons or material breach of the Loan Documents by the Agent or its Related Persons.
(iii)The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of Agent-Related Persons warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non- infringement of third party rights or freedom from viruses or other code defects is made by Agent-Related Persons in connection with the Platform or the Approved Electronic Communications.
(iv)The Parent, each of its Subsidiaries and each Lender agrees that the Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Agent’s customary document retention procedures and policies.
(v)Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
(c)The Agent-Related Persons and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower Representative.
Section 11.3.No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder 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.
Section 11.4.Costs and Expenses.
The Borrowers agree (a) to pay or reimburse each Agent-Related Person for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby are consummated) and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, which Attorney Costs shall be limited to the reasonable, documented, out-of-pocket fees and disbursements of (x) one primary counsel for Agent-Related Persons taken as a whole, (y) if reasonably necessary, (i) one firm of regulatory counsel and (ii) one firm of additional local counsel in each relevant material jurisdiction (which may be a single firm for multiple jurisdictions) and (z) in the case of an actual or potential conflict of interest, one additional regulatory counsel and one additional counsel in each applicable jurisdiction to the affected Agent-Related Person or other persons similarly situated, taken as a whole and (b) to pay or reimburse each Agent-Related Person and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under this Agreement (including, but not limited to this Section 11.04) or the
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other Loan Documents (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Obligations and during any legal proceeding, including in any Insolvency Proceeding or appellate proceeding), including all reasonable, documented, out-of-pocket fees and expenses of external legal counsel, which legal counsel shall be limited to the reasonable, documented, out-of-pocket fees and expenses of (x) one primary counsel for Agent-Related Persons taken as a whole, (y) if reasonably required by the Agent, (i) one additional firm of regulatory counsel and (ii) one additional firm of local counsel for Agent-Related Persons in each relevant material jurisdiction (which may be a single firm for multiple jurisdictions) and (z) in the case of an actual or potential conflict of interest, one additional firm of regulatory counsel and one additional firm of counsel in each applicable jurisdiction to the affected Agent-Related Person or other persons similarly situated, taken as a whole. The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto and other reasonable out-of-pocket expenses incurred by each Agent-Related Person and, to the event consented to by the Borrower Representative, the cost of independent public accountants and other outside experts (subject to the limitations above) retained by the Agent. All amounts due under this Section 11.04 shall be payable within thirty (30) days after written demand therefor together with, backup documentation supporting such payment or reimbursement request. The agreements in this Section 11.04 shall survive the repayment of the Loans and the other Obligations.
Section 11.5.Borrower Indemnification; Damage Waiver.
Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Related Persons involved with the Transactions (collectively the “Indemnified Persons”) from and against any and losses, claims, damages or liabilities and the reasonable and documented and invoiced out-of-pocket expenses (including reasonable out-of-pocket Attorney Costs but solely to the extent set forth below) of any kind or nature whatsoever that may at any time be imposed on, incurred by or asserted against any such Indemnified Person by any third party or by the Borrowers or any other Obligor in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (c) any Environmental Liability related to the Parent or any of its Subsidiaries or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnified Person is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Person; provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such losses, claims, damages, liabilities or expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Person or its Related Persons, (y) arise out of or is in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Obligors and that is brought by an Indemnified Person against another Indemnified Person (other than against the Agent in its capacity as such) or (z) result from the settlement of a claim by such Indemnified Person without the Borrowers’ consent (such consent not to be unreasonably withheld, conditioned or delayed); provided that if there is a final judgment against an Indemnified Person in any such proceeding, the Borrowers agree to indemnify and hold harmless each Indemnified Person to the extent and in the manner set forth above; provided, further that such indemnity shall be limited, in the case of legal fees and expenses, to the
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reasonable out-of-pocket fees and expenses of (a) one firm of counsel for all Indemnified Persons, taken as a whole, and, solely in the case of a conflict of interest, one additional firm of counsel to all other Indemnified Persons, taken as a whole, and (b) if reasonably necessary, one firm of regulatory counsel and one firm of local counsel to such Persons, taken as a whole, in any relevant material jurisdiction (which may be a single firm for multiple jurisdictions) and, solely in the case of an actual or potential conflict of interest where the Indemnified Person(s) affected by such conflict retains their own counsel, one additional firm of regulatory counsel and additional firm of local counsel in such relevant material jurisdiction (which may be a single firm for multiple jurisdictions) to all other Indemnified Persons, taken as a whole. No Person party to this Agreement or its Related Persons shall be liable for any damages arising from the use by others (other than its Related Persons) of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any such Person have any liability for any indirect, special, punitive or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due under this Section 11.05 shall be payable within thirty (30) days after written demand therefor together with backup documentation supporting such indemnification request. The agreements in this Section 11.05 shall survive the resignation of the Agent, the replacement of any Lender and the repayment, satisfaction or discharge of the Loans and all the other Obligations. This Section 11.05 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Section 11.6.Marshalling; Payments Set Aside.
Neither the Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Obligor or any other Person or against or in payment of any or all of the Obligations. To the extent that the Borrowers make a payment to the Agent or the Lenders (or to the Agent, on behalf of Lenders), or any Agent or Lender enforces any security interests or exercises any right of setoff, and such payment or the proceeds of such enforcement or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding 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 set-off had not occurred and (b) each Lender severally agrees to pay to the Agent upon demand its pro rata share of any amount so recovered from or repaid by the Agent.
Section 11.7.Assignments, Successors, Participations, Etc.
(a)Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, provided that the Borrowers may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of the Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 11.07(b), or (ii) by way of participation in accordance with the provisions of Section 11.07(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (as defined below) to the extent provided in Section 11.07(e) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
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(b)Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it (provided, however, that pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan)); provided that:
(i)in the case of assignments of Loans (or any Commitment therefor), except in the case of an assignment of the entire remaining amount of the assigning Lender’s Loans (or any Commitment therefor) at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Loans (or any Commitment therefor) of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, unless each of the Agent and, so long as no Event of Default has occurred and is continuing pursuant to Section 8.01(a), (f) or (g), the Borrower Representative otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Borrower Representative shall be deemed to have consented unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof;
(ii)each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned under the Term Loan Facility;
(iii)the parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption; such Assignment and Assumption to be (A) electronically executed and delivered to the Agent via an electronic settlement system then acceptable to the Agent (or, if previously agreed with the Agent, manually), and (B) delivered together with a processing and recordation fee of $3,500, unless waived or reduced by the Agent in its sole discretion;
(iv)the Eligible Assignee, if it shall not be a Lender, shall deliver to the Agent an administrative questionnaire, in the form prescribed by the Agent; and
(v)the Initial Lender shall not be permitted to assign any Loans (other than to its Affiliates and Approved Funds) if, immediately after giving effect to such proposed assignment, the Initial Lender, together with its Affiliates and Approved Funds, would hold less than 51.0% of the outstanding principal amount of the Loans.
Subject to acceptance and recording thereof by the Agent pursuant to Section 11.07(d), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, (provided that, with respect to circumstances in effect on the effective date of such Assignment and Assumption, an Eligible Assignee shall not be entitled to receive any greater payment under Section 3.01 than the applicable Lender would have been entitled to receive had the assignment not taken place) and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.03, 3.04, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender. Any
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assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.07(e).
(c)[Reserved].
(d)Register. The Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and each Lender (with respect to its own interests in the Term Loan Facility only) at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e)Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Agent, sell participations to any Person (other than a natural person or the Parent or any of its Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement; provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that directly affects such Participant. Except to the extent limited by Section 11.07(f), the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (subject to the limitations and requirements of such Sections (including Section 3.01(e) and Section 3.01(f)) and Section 3.07, as if such Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender.
Each Lender that sells a participation pursuant to this Section 11.07(e) shall, acting solely for U.S. federal income tax purposes as a non-fiduciary agent of the Borrowers, maintain a register on which it records the name and address of each participant and the principal amounts (and stated interest) of each participant’s participation interest with respect to the Loans or other obligations under the Loan Documents (each, a “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each Person
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whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(f)Limitations upon Participant Rights. The Obligors shall not be obligated to make any greater payment under Section 3.01 or 3.03 than the Obligors would have been obligated to make in the absence of any participation.
(g)Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h)Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures 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 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.
Section 11.8.Confidentiality.
Each Agent-Related Person and each Lender shall maintain the confidentiality of all information provided to it by or on behalf of the Parent or any Subsidiary, or by the Agent on the Parent’s or such Subsidiary’s or Affiliate’s behalf, under this Agreement or any other Loan Document, it being understood and agreed by the Borrowers that, in any event, the Agent may disclose such information to the Lenders and each Lender may make disclosures thereof to the extent such information (i) was or becomes generally available to the public other than as a result of improper disclosure by the Lender or its Related Persons or was in the Agent’s or such Lender’s possession (not in violation of any other provision of this Section 11.08) or (ii) was or becomes available on a non-confidential basis from a source (other than the Borrowers or any of their Related Persons) not known after due inquiry by such Person to be prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation; provided that any Lender may disclose such information (a) at the request or pursuant to any requirement of any Governmental Authority or representative thereof to which the Lender is subject (including the NAIC) or in connection with an examination of such Lender by any such authority (in which case, except with respect to any audit or examination conducted by bank accountants or any regulatory authority exercising examination or regulatory authority and to the extent practicable and not prohibited by law, such Person agrees to (i) use commercially reasonable efforts to notify the Borrower Representative of the proposed disclosure in advance of such disclosure and if unable to notify the Borrower Representative in advance of such disclosure, such notice shall be delivered to the Borrower Representative promptly thereafter to the extent permitted by law and (ii) use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment); (b) pursuant to subpoena or other court process; (c) when required to do so in accordance with the provisions of any applicable Requirement of Law (in which case, except with respect to any audit or examination conducted by bank accountants or any regulatory authority exercising examination or regulatory authority and to the extent practicable and not prohibited by law, such Person agrees to use commercially reasonable efforts to notify the Borrower Representative of the proposed disclosure in advance of such disclosure and if unable to notify the Borrower Representative in advance of such disclosure, such notice shall be delivered to the Borrower Representative promptly thereafter to the extent permitted by law); (d) to the extent reasonably required in
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connection with any litigation or proceeding involving the Obligors to which the Agent or any Lender or their respective Affiliates may be party; (e) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (f) to such Lender’s independent auditors and other professional advisors on a confidential basis; (g) to any Participant, Lender or Eligible Assignee, actual or potential; provided that such Person agrees in writing to keep such information confidential to the same extent required of the Lenders hereunder or on terms no less restrictive than those set forth in this Section 11.08; provided, however, that such writing may take the form of a “click-through” agreement on the part of the recipient to access such information; (h) to its Affiliates and to their respective officers, directors, employees, legal counsel, independent auditors and other advisors, or agents who need to know such information in connection with the transactions contemplated hereby and are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential; provided, that such Person shall be responsible for its Affiliates’ and such other Persons’ compliance with this subsection (h) and that such Affiliates and other Persons are not insurance companies; (i) to any other party to this Agreement; (j) to any pledgee referred to in Section 11.07(g) or any direct or indirect contractual counterparty or prospective counterparty (or such counterparty’s or prospective counterparty’s professional advisor) to any swap or derivative transaction relating to obligations of the Parent or any of its Subsidiaries (so long as all parties, including all counterparties and advisors agree to be bound by the provisions of this Section 11.08 or other provisions at least as restrictive as this Section 11.08); (k) to any rating agency when required by it; provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Parent or any Subsidiary received by it from the Agent or any Lender; and (l) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans. In addition, the Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents. In the case of confidential information received from the Parent or any Subsidiary after the date hereof, such information shall be treated as confidential unless clearly identified at the time of delivery as non-confidential.
Section 11.9.Set-off.
In addition to any rights and remedies of the Lenders provided by law, if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender or Affiliate to or for the credit or the account of any Borrower against any and all Obligations owing to such Lender, now or hereafter existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured; provided that (a) neither any Lender nor any of its Affiliates shall be entitled to exercise any such set off with respect to any trust, tax reserve or payroll account and (b) such rights may be exercised only at the direction of the Agent or the Required Lenders. Each Lender agrees to promptly notify the Borrower Representative and the Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application.
Section 11.10.Notification of Addresses, Lending Offices, Etc.
Each Lender shall notify the Agent in writing of any changes in the address to which notices to the Lender should be directed, of addresses of any Lending Office, of payment instructions in respect of
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all payments to be made to it hereunder and of such other administrative information as the Agent shall reasonably request.
Section 11.11.Effectiveness; Counterparts.
This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Borrowers and the Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile transmission or other electronic transmission (e.g., “.pdf’ or “.tif’) shall be effective as delivery of a manually executed counterpart hereof.
Section 11.12.Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Agent and each Lender, regardless of any investigation made by the Agent or any Lender or on their behalf, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
Section 11.13.Severability.
If any provision of any Loan Document is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions of the Loan Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Lenders in order to carry out the intentions of the parties thereto as nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
Section 11.14.Replacement of Defaulting Lenders and Non-Consenting Lenders.
If any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, upon notice by the Borrower Representative to such Lender and the Agent, (i) replace such Lender by causing such Lender to assign its Loans (with the assignment fee to be paid by the Borrowers in such instance) pursuant to Section 11.07(b) to one or more other Lenders or Eligible Assignees identified by the Borrower Representative or (ii) notwithstanding Section 2.11, terminate the applicable Commitments of such Lender and repay all Obligations of the Borrowers owing to such Lender relating to the Loans and participations held by such Lender as of such termination date; provided that such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.01, 3.03 and 3.04) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts)).
With respect to clause (i) above, no action by or consent of a Defaulting Lender or a Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment the Borrowers, the Agent, such Defaulting Lender or such Non-Consenting Lender and the
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replacement Lender shall otherwise comply with this Section 11.14; provided that if such Defaulting Lender or such Non-Consenting Lender does not comply with this Section 11.14 within one Business Day after the Borrowers’ request, compliance with this Section 11.14 shall not be required to effect such assignment.
Section 11.15.Governing Law; Jurisdiction; Consent to Service of Process; Process Agent; Sovereign Immunity.
(a)This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b)Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any relevant appellate court, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each party hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in any Loan Document shall affect any right that any Lender or the Agent may otherwise have to bring any action or proceeding relating to any Loan Document against any Obligor or its properties in the courts of any jurisdiction.
(c)Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in subsection (b) of this Section 11.15. Each party hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court.
(d)Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 11.02. Nothing in any Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
(e)Cirrata UK hereby irrevocably appoints the Borrower Representative (in such capacity, the “Process Agent”), as its agent to receive on behalf of Cirrata UK service of the summons and complaint and any other process which may be served in any action or proceeding described above. Such service may be made by mailing or delivering a copy of such process to Cirrata UK, in care of the Process Agent at the address specified for such Process Agent, and Cirrata UK hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Cirrata UK covenants and agrees that, for so long as it shall be bound under this Agreement or any other Loan Document, it shall maintain a duly appointed agent for the service of summons and other legal process in New York, New York, United States of America, for the purposes of any legal action, suit or proceeding brought by any party in respect of this Agreement or such other Loan Document and shall keep the Agents advised of the identity and location of such agent. If for any reason there is no authorized agent for service of process in New York, Cirrata UK irrevocably consents to the service of process out of the said courts by mailing copies thereof by registered United States air mail postage prepaid to it at its address specified in Section 11.02. Nothing in this Section 11.15 shall affect the right of any Secured Party to (i) commence legal proceedings or otherwise sue Cirrata UK in the country in which it is domiciled or in any other court
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having jurisdiction over Cirrata UK or (ii) serve process upon Cirrata UK in any manner authorized by the laws of any such jurisdiction.
(f)Each Borrower waives any immunity (sovereign or otherwise) from jurisdiction of any court or from any legal process to which it or its properties or assets may be entitled. To the extent that any Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each Borrower irrevocably waives such immunity in respect of its obligations under the Loan Documents.
Section 11.16     Waiver of Jury Trial.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 11.17.USA PATRIOT Act Notice.
Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will allow such Lender or the Agent, as applicable, to identify each Obligor in accordance with the Patriot Act.
Section 11.18.Entire Agreement.
This Agreement, together with the other Loan Documents and any separate agreements with respect to fees payable to the Agent, embodies the entire agreement and understanding among the Borrowers, the Lenders and the Agent and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.
Section 11.19.Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
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Section 11.20.Obligations Several; Independent Nature of Lenders’ Right.
The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
Section 11.21.No Fiduciary Duty.
The Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Obligors, their stockholders and/or their affiliates. Each Obligor agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Obligor, its stockholders or its affiliates, on the other. The Obligors acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Obligors, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Obligor, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Obligor, its stockholders or its Affiliates on other matters) or any other obligation to any Obligor except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Obligor, its management, stockholders, creditors or any other Person. Each Obligor acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Obligor agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Obligor, in connection with such transaction or the process leading thereto.
Section 11.22.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 such parties, 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 the 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 Lender that is an Affected Financial Institution; and
(b)the effects of any Bail-In Action on any such liability, including, if applicable:
(i)a reduction in full or in part or cancellation of any such liability;
(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 undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of
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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 the applicable Resolution Authority.
Section 11.23.Acknowledgment and Consent Regarding Any Supported QFCs
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts 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 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.
(b)As used in this Section 11.23, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
Section 11.24.Lender Action.
Each Lender (and each Secured Party by accepting the benefits of the Collateral) agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Obligor or any other obligor under any of the Loan Documents or any other document secured by the Collateral) (including the exercise of any right of set off, rights on account of any bankers’ liens or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such obligor, without the prior written consent of the Agent or Required Lenders.
Section 11.25.Joint and Several Liability of the Borrowers.
Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other Loan Document, it is understood and agreed by the parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans, and all other Obligations pursuant to this Agreement and each other Loan Document (including all fees, indemnities and other Obligations in connection therewith) shall constitute the joint and several obligations of each of the Borrowers. The Borrowers shall be jointly and severally liable for all Obligations regardless of which Borrower actually receives the proceeds of any Loan. In addition to the direct (and joint and several) obligations of the Borrowers with respect to Obligations as described above, each Borrower agrees that all such Obligations shall be guaranteed pursuant to and in accordance with the terms of the Guaranty, which is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 11.25 shall not be discharged until Payment in Full of the Obligations has occurred.
Section 11.26.Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrowers in respect of any such sum due from it to the Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures 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 Administrative Agent from the Borrowers in the Agreement Currency, the Borrowers agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrowers (or to any other Person who may be entitled thereto under applicable law)

[SIGNATURE PAGES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their proper and duly authorized officers as of the day and year first above written.

CIRRATA GROUP LLC,
as a Borrower
By:    . /s/ Stephen M. Ksenak .
Name: Stephen M. Ksenak
Title:    Senior Managing Director, General Counsel and     Assistant Secretary
CIRRATA V LLC,
as a Borrower
By:    . /s/ Stephen M. Ksenak .
Name: Stephen M. Ksenak
Title:    Senior Managing Director, General Counsel and     Assistant Secretary
CIRRATA V UK LIMITED,
as a Borrower
By:    . /s/ Stephen M. Ksenak .
Name: Stephen M. Ksenak
Title:    Director
AMBAC FINANCIAL GROUP, INC.,
as the Parent
By:    . /s/ Stephen M. Ksenak .
Name: Stephen M. Ksenak
Title:    Senior Managing Director, General Counsel and     Assistant Secretary
[Signature Page to Credit Agreement (Project Brio)]

UBS AG, STAMFORD BRANCH,
as Agent and Lender
By:      /s/ Danielle Calo .
    Name: Danielle Calo
    Title: Associate Director
By:      /s/ Muhammad Afzal .
    Name: Muhammad Afzal
    Title: Director



[Signature Page to Credit Agreement (Project Brio)]
Exhibit 99.1
Ambac Completes Acquisition of Beat Capital Partners
New York--(BUSINESS WIRE)— Ambac Financial Group, Inc. (“Ambac”) (NYSE: AMBC), an insurance holding company, today announced the completion of its previously disclosed acquisition of Beat Capital Partners (“Beat”), a London-based insurance underwriting and managing general agency (MGA) incubation platform. Ambac purchased a 60% controlling stake in Beat, which will continue to be led by its existing management team, including Chairman John Cavanagh.
The acquisition doubles the size of Ambac’s property and casualty insurance operation, placing it on track to produce approximately $1.4 billion in premiums on an annualized basis for 2024. The acquisition of Beat adds immediate scale and diversification to Cirrata Group, Ambac’s insurance distribution division, increasing the number of MGAs in Cirrata Group to 16.
“We are excited to complete this transaction, which materially scales our insurance distribution business and strengthens our position as a premier destination for MGAs,” said Ambac President and Chief Executive Officer Claude LeBlanc. “With its strong reputation, proven leadership team and the expertise of its MGA CEOs, Beat will be an important asset to our organization as we continue to execute our specialty P&C strategy and drive long-term growth and value creation for our shareholders.”
Cavanagh said, “Beat’s partnership with Ambac will enable us to take Beat to the next level, building on our established track record of achieving growth and strong margins. Together, with expanded international scale, we can offer an even stronger platform for MGAs and underwriting franchises, and we’ll have the firepower to grow and expand globally as well as the U.S.”
About Ambac
Ambac Financial Group, Inc. (“Ambac” or “AFG”) is a specialty insurance holding company headquartered in New York City. Ambac’s core business is a growing specialty P&C distribution and underwriting platform. Ambac also has a legacy financial guaranty business in run off. Ambac’s common stock trades on the New York Stock Exchange under the symbol “AMBC”. Ambac is committed to providing timely and accurate information to the investing public, consistent with our legal and regulatory obligations. To that end, we use our website to convey information about our businesses, including the anticipated release of quarterly financial results, quarterly financial, statistical and business-related information. For more information, please go to www.ambac.com.
The Amended and Restated Certificate of Incorporation of Ambac contains substantial restrictions on the ability to transfer Ambac’s common stock. Subject to limited exceptions, any attempted transfer of common stock shall be prohibited and void to the extent that, as a result of such transfer (or any series of transfers of which such transfer is a part), any person or group of persons shall become a holder of 5% or more of Ambac’s common stock or a holder of 5% or more of Ambac’s common stock increases its ownership interest.
Forward Looking Statements
In this press release, we include statements that may constitute “forward-looking statements” within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Words such as “estimate,” “project,” “plan,” “believe,” “anticipate,” “intend,” “planned,” “potential” and similar expressions, or future or conditional verbs such as “will,” “should,” “would,” “could,” and “may,” or the negative of those expressions or verbs, identify forward-looking statements. We caution readers that these statements are not guarantees of future performance. Forward-looking statements are not historical facts but instead represent only our beliefs regarding future events,

Exhibit 99.1
which may by their nature be inherently uncertain and some of which may be outside our control. These statements may relate to plans and objectives with respect to the future, among other things which may change. We are alerting you to the possibility that our actual results may differ, possibly materially, from the expected objectives or anticipated results that may be suggested, expressed or implied by these forward-looking statements. Important factors that could cause our results to differ, possibly materially, from those indicated in the forward-looking statements include, among others, those discussed under “Risk Factors” in our most recent SEC filed quarterly or annual report.
Any or all of management’s forward-looking statements here or in other publications may turn out to be incorrect and are based on management’s current belief or opinions. Ambac Financial Group’s (“AFG”) and its subsidiaries’ (collectively, “Ambac” or the “Company”) actual results may vary materially, and there are no guarantees about the performance of Ambac’s securities. Among events, risks, uncertainties or factors that could cause actual results to differ materially are: (1) the high degree of volatility in the price of AFG’s common stock; (2) uncertainty concerning the Company’s ability to achieve value for holders of its securities, whether from Ambac Assurance Corporation (“AAC”) and its subsidiaries or from the specialty property and casualty insurance business, the insurance distribution business, or related businesses; (3) inadequacy of reserves established for losses and loss expenses and the possibility that changes in loss reserves may result in further volatility of earnings or financial results; (4) potential for rehabilitation proceedings or other regulatory intervention or restrictions against AAC; (5) credit risk throughout Ambac’s business, including but not limited to credit risk related to insured residential mortgage-backed securities, student loan and other asset securitizations, public finance obligations (including risks associated with Chapter 9 and other restructuring proceedings), issuers of securities in our investment portfolios, and exposures to reinsurers; (6) our inability to effectively reduce insured financial guarantee exposures or achieve recoveries or investment objectives; (7) AAC’s inability to generate the significant amount of cash needed to service its debt and financial obligations, and its inability to refinance its indebtedness; (8) AAC’s substantial indebtedness could adversely affect the Company’s financial condition and operating flexibility; (9) Ambac may not be able to obtain financing or raise capital on acceptable terms or at all due to its substantial indebtedness and financial condition; (10) greater than expected underwriting losses in the Company’s specialty property and casualty insurance business; (11) failure of specialty insurance program partners to properly market, underwrite or administer policies; (12) inability to obtain reinsurance coverage on expected terms; (13) loss of key relationships for production of business in specialty property and casualty and insurance distribution businesses or the inability to secure such additional relationships to produce expected results; (14) the impact of catastrophic public health, environmental or natural events, or global or regional conflicts; (15) credit risks related to large single risks, risk concentrations and correlated risks; (16) risks associated with adverse selection as Ambac’s financial guarantee insurance portfolio runs off; (17) the risk that Ambac’s risk management policies and practices do not anticipate certain risks and/or the magnitude of potential for loss; (18) restrictive covenants in agreements and instruments that impair Ambac’s ability to pursue or achieve its business strategies; (19) adverse effects on operating results or the Company’s financial position resulting from measures taken to reduce financial guarantee risks in its insured portfolio; (20) disagreements or disputes with Ambac's insurance regulators; (21) loss of control rights in transactions for which we provide financial guarantee insurance; (22) inability to realize expected recoveries of financial guarantee losses; (23) risks attendant to the change in composition of securities in Ambac’s investment portfolio; (24) adverse impacts from changes in prevailing interest rates; (25) events or circumstances that result in the impairment of our intangible assets and/or goodwill that was recorded in connection with Ambac’s acquisitions; (26) factors that may negatively influence the amount of installment premiums paid to Ambac; (27) the risk of litigation, regulatory inquiries, investigations, claims or proceedings, and the risk of adverse

Exhibit 99.1
outcomes in connection therewith; (28) the Company’s ability to adapt to the rapid pace of regulatory change; (29) actions of stakeholders whose interests are not aligned with broader interests of Ambac's stockholders; (30) system security risks, data protection breaches and cyber attacks; (31) regulatory oversight of Ambac Assurance UK Limited (“Ambac UK”) and applicable regulatory restrictions may adversely affect our ability to realize value from Ambac UK or the amount of value we ultimately realize; (32) failures in services or products provided by third parties; (33) political developments that disrupt the economies where the Company has insured exposures; (34) our inability to attract and retain qualified executives, senior managers and other employees, or the loss of such personnel; (35) fluctuations in foreign currency exchange rates; (36) failure to realize our business expansion plans or failure of such plans to create value; (37) greater competition for our specialty property and casualty insurance business and/or our insurance distribution business; (38) loss or lowering of the AM Best rating for our property and casualty insurance company subsidiaries; (39) disintermediation within the insurance industry or greater competition from technology-based insurance solutions or non-traditional insurance markets; (40) changes in law or in the functioning of the healthcare market that impair the business model of our accident and health managing general underwriter; and (41) other risks and uncertainties that have not been identified at this time; (42) the occurrence of any event, change or other circumstances that could give rise to the right of one or both of the parties to terminate the stock purchase agreement by and between Oaktree and Ambac in connection with the proposed sale by Ambac to Oaktree of all of the issued and outstanding shares of common stock of AAC (the “Transaction”); (43) the outcome of any legal proceedings that may be instituted against Ambac or Oaktree; (44) the failure to obtain necessary regulatory approvals (and the risk that such approvals may result in the imposition of conditions that could adversely affect the expected benefits of the Transaction), and Ambac shareholder approval or to satisfy any of the other conditions to the Transaction on a timely basis or at all; (45) the possibility that the Transaction may be more expensive to complete than anticipated, including as a result of unexpected factors or events; (46) diversion of management’s attention from ongoing business operations and opportunities; (47) potential adverse reactions or changes to business or employee relationships, including those resulting from the announcement or completion of the Transaction; (48) the ability of the parties to consummate the Transaction and the timing of the Transaction; (49) the high degree of volatility in the price of Ambac’s common stock; (50) uncertainty concerning the Company’s ability to achieve value for holders of its securities, whether from AAC and its subsidiaries or from the specialty property and casualty insurance business, the insurance distribution business, or related businesses.
CONTACTS
Investors:
Charles J. Sebaski
Managing Director, Investor Relations
(212) 208-3177
[email protected]
Media:
Kate Smith
Director, Corporate Communications
(212) 208-3452
[email protected]

Source: Ambac Financial Group, Inc.