UBER 8-K
Uber Technologies, Inc (UBER)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Business Combination Agreement
On July 16, 2026, Uber Technologies, Inc. (the “Company” or “Uber”) entered into a Business Combination Agreement (the “BCA”), by and among, the Company, Uber International Technologies II Corporation, a Delaware corporation and a wholly-owned subsidiary of the Company (the “Bidder”), and Delivery Hero SE, a European Company (Societas Europaea) incorporated under German law (“Delivery Hero”), pursuant to which the Bidder will make a voluntary public takeover offer within the meaning of Section 29 para. 1 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, “WpÜG”) for the purchase of all of the no-par value registered shares (shares without nominal value) (nennwertlose Namens-Stückaktien) with a proportionate amount of EUR 1.00 per share of the share capital of Delivery Hero (each a “Delivery Hero Share” and collectively “Delivery Hero Shares”) for cash consideration per Delivery Hero Share of €41.50 (the “Offer”).
The BCA and the transactions contemplated thereby have been approved by the board of directors of the Company. The management board (Vorstand) and the supervisory board (Aufsichtsrat) of Delivery Hero (together, the “Delivery Hero Boards”) have unanimously adopted resolutions approving, among other things, entering into the BCA. Under the BCA, Delivery Hero’s management board has undertaken to recommend, and to use reasonable endeavors to procure that Delivery Hero’s supervisory board will recommend, subject to their fiduciary duties, applicable law and receipt of a fairness opinion, that the Delivery Hero shareholders accept the Offer.
The Offer is expected to be completed in the second half of 2027, subject to satisfaction of the conditions to the completion of the Offer, including the receipt of specified regulatory approvals and satisfaction of the minimum tender offer condition. Following successful completion of the Offer, Delivery Hero would become a majority-owned indirect subsidiary of the Company.
The parties to the BCA have made covenants that are generally customary for German voluntary public takeover transactions of this nature including, among others, (i) covenants by the Company and the Bidder to use best efforts to obtain specified governmental and regulatory approvals and clearances, and (ii) covenants by Delivery Hero to carry on its business in the ordinary course during the period between the execution of the BCA and the completion of the Offer (or the earlier termination of the BCA) and not to take certain actions during such period.
Subject to certain exceptions intended to permit the Delivery Hero Boards to comply with their fiduciary duties, Delivery Hero has agreed not to solicit proposals relating to competing offers or enter into negotiations concerning or furnish information in connection with the sale of Delivery Hero to a party other than the Company, the Bidder or their affiliates.
The Company currently anticipates that the transaction will be funded primarily with existing cash balances and debt.
Completion of the Offer will be subject to satisfaction of certain conditions. The conditions will include, among others, the receipt of specified competition approvals, the receipt of specified financial services regulatory approvals and the acceptance of the Offer by holders of Delivery Hero Shares that, taken together with Delivery Hero Shares held by or attributed to the Bidder and its affiliates, represent at least 50% of the number of Delivery Hero Shares as of the expiration of the acceptance period for the Offer plus one share, excluding treasury shares.
The BCA may be terminated at any time prior to the completion of the Offer by the mutual written consent of the Bidder (which is authorized to act for the Company) and Delivery Hero and in certain other circumstances, including: (i) by either party if (a) the Offer lapses as a result of failure to satisfy the conditions to the Offer set forth in the BCA or the conditions within the meaning of Section 18 para. 1 WpÜG (Angebotsbedingungen) are no longer capable of being satisfied or (b) the announcement of a competing offer is published and the Delivery Hero Boards withdraw their support of the Offer; (ii) by Delivery Hero if (a) BaFin prohibits the publication of the applicable Offer document, (b) the offer price in the Offer is lower than the offer price in the BCA, (c) the Offer contains conditions within the meaning of Section 18 para. 1 WpÜG (Angebotsbedingungen) that differ from the conditions to the Offer set forth in the BCA in a manner that would not only immaterially affect certainty of the transaction, (d) there is an uncured breach of any material provision of the BCA by the Bidder or the Company, or (e) in the event all Offer conditions have been satisfied or duly waived by May 10, 2028, but Offer completion has not occurred due to regulatory reasons by the tenth (10th) business day following such date; and (iii) by the Bidder (and the Company) if (a) there is an uncured breach of any material provision of the BCA by Delivery Hero, (b) the Delivery Hero Boards do not support the Offer as agreed in the BCA, or (c) any of the conditions to the Offer set forth in the BCA would have failed if it had been applied during the period from the announcement of the Offer to the publication of the applicable Offer document.
Delivery Hero will be required to pay to the Company a termination fee of EUR 200 million if the BCA is terminated by either party because a competing offer is announced and the Delivery Hero Boards withdraw their support of the Offer, or if the BCA is terminated by the Bidder because the Delivery Hero Boards do not support the Offer as agreed in the BCA. The Bidder will be required to pay to Delivery Hero a termination fee of EUR 700 million if the BCA is (x) terminated by either party because the Offer has lapsed and as of the time of such termination, certain conditions to the Offer set forth in the BCA related to the receipt of regulatory approvals have not been satisfied (but all other conditions have been satisfied) and Delivery Hero has not fraudulently or willfully breached, in any material respect, any of its regulatory effort covenants or agreements relating to such conditions, or (y) terminated by Delivery Hero in the event all Offer conditions have been satisfied or duly waived by May 10, 2028, but Offer completion has not occurred due to regulatory reasons by the tenth (10th) business day following such date.
The BCA has been attached hereto to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company or Delivery Hero. In particular, the covenants and agreements contained in the BCA, which were made only for purposes of the BCA, were solely for the benefit of the parties to the BCA, may be subject to limitations agreed upon by the contracting parties and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and security holders. Investors and security holders are not third-party beneficiaries under the BCA and should not rely on the covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the BCA.
Bridge Credit Agreement
In connection with its entry into the BCA, on July 16, 2026 (“Effective Date”), Uber entered into a Bridge Credit Agreement (the “Bridge Credit Agreement”), among the Company, as borrower, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent.
The Bridge Credit Agreement provides for senior unsecured bridge loan commitments in an aggregate amount of €14,200,000,000 which will mature on the date that is 364 days after the Closing Date (as defined in the Bridge Credit Agreement). The proceeds of any loans under the Bridge Credit Agreement will be used to finance the Offer, to provide funding for related transactions, to refinance certain indebtedness of Delivery Hero and for the payment of related transaction costs. The Bridge Credit Agreement is unsecured and is not guaranteed by any subsidiary of the Company.
Loans under the Bridge Credit Agreement will bear interest at EURIBOR plus an applicable margin. The applicable margin will fluctuate based upon the ratings of the Company’s non-credit-enhanced senior unsecured long-term debt by Standard & Poor’s Financial Services LLC, Moody’s Investors Service, Inc. or Fitch Ratings Ltd. (the “Debt Rating”) and will be subject to step-ups on each of the 90th, 180th and 270th days after the Closing Date. The Bridge Credit Agreement also provides for (i) a commitment fee, commencing 120 days after the Effective Date until the termination of the aggregate commitments, accruing at a rate determined by reference to the Debt Rating, (ii) a funding fee on the aggregate principal amount of loans funded on the date such loans are funded and (iii) duration fees payable on the 90th, 180th and 270th days after the Closing Date, respectively, if commitments remain outstanding or loans have not been repaid in full on or prior to such dates. No borrowing has been drawn on the Effective Date.
The Bridge Credit Agreement requires mandatory prepayment of loans, and corresponding reduction of commitments, with 100% of the Euro equivalent of net cash proceeds received by the Company or any of its subsidiaries from any equity issuance, debt issuance or asset sale (in each case, subject to certain exceptions and reinvestment rights set forth in the Bridge Credit Agreement) after the Closing Date. In addition, each lender’s commitment will automatically be reduced by the amount of each loan made by such lender, and all remaining commitments will automatically terminate on the Availability End Date (as defined in the Bridge Credit Agreement) or on the second funding date following the funding of any loans on such date.
The Bridge Credit Agreement contains certain customary representations and warranties, affirmative and negative covenants and events of default. Negative covenants include, among others, certain limitations on the incurrence of liens securing indebtedness by the Company and its material subsidiaries and the incurrence of indebtedness by the Company’s material subsidiaries. In addition, the Bridge Credit Agreement requires that the Company maintain a ratio of consolidated adjusted earnings before interest, taxes, depreciation and amortization to consolidated interest expense of not less than 3.00 to 1.00, as more fully described in the Bridge Credit Agreement. The following events are considered “events of default” under the Bridge Credit Agreement: default in the payment of principal of any loan; default in the payment of any interest on any loan, any fee due or any other amount payable thereunder and such default continues for a period of five business days; failure to comply with specified covenants; material misrepresentations; certain defaults by the Company or any of the Company’s material subsidiaries with respect to indebtedness for borrowed money in an amount exceeding $300 million; certain events of bankruptcy, insolvency or reorganization of the Company or any of the Company’s material subsidiaries (as defined in the Bridge Credit Agreement) or any of the Company’s significant subsidiaries (as defined in the Bridge Credit Agreement); certain judgment defaults against the Company or any of the Company’s material subsidiaries in an amount exceeding $300 million; the occurrence of certain ERISA events; the occurrence of any change of control (as defined in the Bridge Credit Agreement); and the Company ceasing to own, directly or indirectly, 100% of the equity interests of the Bidder. If certain bankruptcy and insolvency-related events of default occur, any outstanding obligations under the Bridge Credit Agreement may be declared immediately due and payable and the commitments may be terminated. If an event of default, other than certain bankruptcy and insolvency-related events of default, occurs and is not cured within applicable grace periods or waived, any outstanding obligations under the Bridge Credit Agreement may be declared immediately due and payable and the commitments may be terminated.
The foregoing summary of the Bridge Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Bridge Credit Agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K under the heading “Bridge Credit Agreement” is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
Copies of the press release announcing the transaction and the investor presentation for the transaction are furnished as Exhibit 99.1 and Exhibit 99.2, respectively, to this Current Report on Form 8-K.
The information set forth under this Item 7.01, including Exhibit 99.1 and Exhibit 99.2, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language in such filing, except as otherwise expressly stated in such filing.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934, which includes forward-looking statements regarding the proposed transaction and Uber’s and Delivery Hero’s future business expectations which involve risks and uncertainties. Actual results may differ materially from the results predicted, and reported results should not be considered as an indication of future performance. Forward-looking statements include all statements that are not historical facts and can be identified by terms such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “hope,” “intend,” “may,” “objective,” “ongoing,” “plan,” “potential,” “predict,” “should,” “will,” or “would” or similar expressions and the negatives of those terms. Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause Uber’s or Delivery Hero’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. These risks, uncertainties and other factors relate to, among others: risks and uncertainties related to the pending transaction, including the failure to obtain, or delays in obtaining, required regulatory approvals, the risk that such approvals may result in the imposition of conditions that could adversely affect Uber or the expected benefits of the proposed transaction, or the failure to satisfy any of the closing conditions to the tender offer, including the minimum acceptance condition, on a timely basis or at all; costs, expenses or difficulties related to the transaction; the failure to realize the expected benefits and synergies of the proposed transaction in the expected timeframes or at all or the ability to achieve the expected financial and operating performance and future opportunities following the completion of the proposed transaction; the potential impact of the announcement, pendency or consummation of the proposed transaction on relationships with Uber’s and/or Delivery Hero’s employees, merchants, suppliers, couriers and other business partners, including the diversion of Uber’s and Delivery Hero’s respective managements from business operations; the risk of litigation or regulatory actions to Uber and/or Delivery Hero; inability to retain key personnel; changes in legislation or government regulations affecting Uber or Delivery Hero; the potential impact of the transaction on Uber’s or Delivery Hero’s business, financial condition and operating results; the ability to complete the proposed transaction on the anticipated terms, including financing terms, and in the anticipated timeframe or at all; and economic financial, social or political conditions that could adversely affect Uber, Delivery Hero or the proposed transaction. For additional information on other potential risks and uncertainties that could cause actual results to differ from the results predicted, please see Uber’s Annual Report on Form 10-K for the year ended December 31, 2025 and subsequent quarterly reports, other filings filed with the Securities and Exchange Commission from time to time and Uber’s and Delivery Hero’s other press releases and public filings. All information provided in this Current Report on Form 8-K and in the attachments is as of the date of this Current Report on Form 8-K and any forward-looking statements contained herein are based on assumptions that we believe to be reasonable as of this date. Undue reliance should not be placed on the forward-looking statements in this Current Report on Form 8-K, which are based on information available to us on the date hereof. We undertake no duty to update this information unless required by law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number | Description | |
| 2.1* | Business Combination Agreement, dated as of July 16, 2026, by and among Uber Technologies, Inc., Uber International Technologies II Corporation and Delivery Hero SE. | |
| 10.1 | Bridge Credit Agreement, dated as of July 16, 2026, by and among Uber Technologies, Inc., as borrower, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent. | |
| 99.1+ | Press Release, dated July 16, 2026 | |
| 99.2+ | Investor Presentation, dated July 16, 2026 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| * | Pursuant to Item 601(a)(5) of Regulation S-K promulgated by the U.S. Securities and Exchange Commission, certain schedules and attachments to this exhibit have been omitted because they do not contain information material to an investment or voting decision and that information is not otherwise disclosed in the exhibit. |
| + | Furnished, not filed. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| UBER TECHNOLOGIES, INC. | |
| Date: July 16, 2026 | By: /s/ Dara Khosrowshahi |
| Dara Khosrowshahi | |
| Chief Executive Officer |
Exhibit 2.1
Certain identified information has been excluded from this exhibit both because it (i) is not material and (ii) is the type that the issuer treats as private or confidential. Brackets with triple asterisks denote omissions.
July 16, 2026
Uber International Technologies II Corporation,
UBER TECHNOLOGIES, INC.
and
DELIVERY HERO SE
| BUSINESS COMBINATION AGREEMENT | ||
CONTENTS
| CLAUSE | PAGE |
| 1. Bidder’s Obligation regarding the Offer | 3 |
| 2. Support of the Offer by the Company | 8 |
| 3. Further support of the Transaction | 11 |
| 4. Regulatory Clearances cooperation | 18 |
| 5. Obligations regarding Purchase Agreement proceeds from Asset Purchaser Transaction | 19 |
| 6. Business strategy | 20 |
| 7. Brand | 20 |
| 8. Corporate governance | 21 |
| 9. Workforce | 22 |
| 10. Corporate and post completion measures | 23 |
| 11. Integration Planning | 24 |
| 12. Corporate approvals | 25 |
| 13. Term and termination | 25 |
| 14. Miscellaneous | 27 |
| TABLE OF ANNEXES | |
| Annex 1.5 Agreed form certain funds confirmation | |
| Annex 1.6 Agreed Form Press Release | |
| Annex 2.1(a) Agreed Form Ad Hoc Announcement | |
| Annex 2.1(b) Agreed Form Press Release Delivery Hero | |
| Annex 3.6 Information Rights and Cooperation Undertaking |
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PARTIES
| (1) | Uber International Technologies II Corporation, a corporation incorporated under the laws of the State of Delaware, United States of America, having its business address at c/o Uber Technologies, Inc., 1725 3rd Street, San Francisco CA 94158-2203, United States of America, registered with the Delaware Division of Corporations under file number 10696555 (the Bidder); and |
| (2) | UBER TECHNOLOGIES, INC., a corporation incorporated under the laws of the State of Delaware, United States of America, having its business address at 1725 3rd Street, San Francisco CA 94158-2203, United States of America, registered with the Delaware Division of Corporations under file number 4849283 (Uber and together with the Bidder the Acquirors); and |
| (3) | DELIVERY HERO SE, a European Company (Societas Europaea), having its registered office at Berlin, Germany, and registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Berlin (Charlottenburg) under HRB 198015 (the Company or Delivery Hero), |
(Bidder, Uber and the Company each a Party and together the Parties).
PREAMBLE
| (A) | The Company is a leading local delivery platform offering, among other things, online food ordering, quick commerce, access to local shops and delivery services (collectively, irrespective of Party affiliation, the Delivery Business). The registered share capital (Grundkapital) of the Company (the Company together with its subsidiaries from time to time, the Delivery Hero Group) amounts to EUR 303,796,856.00 (and, following the capital increase from authorized capital resolved by the management board and the supervisory board but not yet registered in the commercial register, will amount to EUR 306,492,017.00) and is divided into 303,796,856 no-par value registered shares (shares without nominal value) (nennwertlose Namens-Stückaktien) (and, following such capital increase, 306,492,017 such shares) with a proportionate amount of EUR 1.00 per share of the share capital (each, as existing from time to time, a Delivery Hero Share and collectively Delivery Hero Shares). The Delivery Hero Shares are listed on the regulated market (regulierter Markt) (Prime Standard) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) (ISIN DE000A2E4K43). |
| (B) | Uber is the parent company of a multinational transportation company that, among other things, provides ride-hailing services, courier services, food delivery, and freight transport. The Bidder is a direct wholly-owned subsidiary of Uber (Uber together with its subsidiaries from time to time, the Uber Group). |
| (C) | The Bidder intends to acquire the Delivery Hero Group, and the Parties intend to consummate a business combination of and strategic partnership between Uber and its Affiliates, on the one hand, and Delivery Hero Group, on the other hand for purposes of establishing a leading global food delivery platform following Offer Completion (such combination, the Transaction, and the Delivery Hero Group following the Transaction, the “Post-Closing Business”), including by a voluntary public takeover offer within the meaning of Section 29 para. 1 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, WpÜG) for the purchase of all Delivery Hero Shares against cash consideration per Delivery Hero Share (the Offer). |
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| (D) | The Company’s management board (Vorstand – the Management Board), after due consideration and evaluation of all currently available facts and foreseeable consequences for the Company, has determined with the consent of the Company’s supervisory board (Aufsichtsrat – the Supervisory Board) that the proposed Transaction strategy will benefit the Company and is in its best interest. |
| (E) | The Parties wish to agree to pursue the Transaction and therefore to enter into this business combination agreement which, inter alia, sets out the principal terms and conditions and the mutual understanding of the Parties with respect to the Transaction, the Transaction structure, and the future corporate governance structure of the Company and sets forth the agreement among the Parties as to the content of the Offer (the Agreement). |
| (F) | Immediately prior to entry into this Agreement, the Acquirors concluded an agreement with an anchor shareholder of the Company under which such anchor shareholder irrevocably undertakes to tender into the Offer all Delivery Hero Shares held by it as well as any additional Delivery Hero Shares in respect of which it may acquire legal and/or beneficial ownership (the Irrevocable). As of the date hereof, the Delivery Hero Shares subject to the Irrevocable amount to a total of 51,116,174 Delivery Hero Shares, corresponding to approx. 16.8% of Delivery Hero’s issued share capital. |
| (G) | The members of the Management Board and the Supervisory Board, to the extent legally permissible, have agreed that they will accept the Offer for Delivery Hero Shares held by them (if any) and that they will make a corresponding statement in the Reasoned Statement. |
| (H) | As of the date of this Agreement, Delivery Hero entered into a sale and purchase agreement (the Purchase Agreement), providing for (i) the sale of certain business divisions and/or other assets of Delivery Hero Group to SDU 1, LLC (the Asset Purchaser), and (ii) for a closing to occur immediately prior to, and subject to the occurrence of, the Offer Completion (such sale as contemplated by such Purchase Agreement and the ancillary agreements contemplated thereby, the Asset Purchaser Transaction). As further described in such Purchase Agreement, the Asset Purchaser Transaction contemplates separation of certain assets or subsidiaries of Delivery Hero, with certain of those separated assets or subsidiaries to be retained by Delivery Hero and the remainder to be transferred to the Asset Purchaser. For the avoidance of doubt, such carve-out transactions are included within the scope of the defined term “Asset Purchaser Transaction”. |
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
| 1. | Bidder’s Obligation regarding the Offer |
| 1.1 | The Bidder hereby undertakes to |
| (a) | announce its intention to launch the Offer in accordance with Section 10 para. 1 sentence 1 and para. 3 sentence 1 WpÜG immediately after execution of this Agreement (such date the Effective Date); |
| (b) | submit a formal offer document (Angebotsunterlage) describing terms and conditions of the Offer (the Offer Document) and which has been prepared in accordance with the WpÜG and the German Regulation on the Content of the Offer Document, the Consideration for Takeover Offers and Mandatory Offers and the Release from the Obligation to Publish and Submit a Tender Offer (WpÜG-Angebotsverordnung) to the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) for its review within the time period prescribed in Section 14 para. 1 WpÜG and which shall have an offer period (Section 16 para. 1 WpÜG) of ten (10) weeks, and which reflects the terms and conditions of this Agreement, in particular as set forth in Clauses 1.2, 1.3, 1.4, 1.5, 6, 8, 9 and 10; |
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| (c) | make available to Delivery Hero and its advisors a draft of the Offer Document for review and comments at latest one (1) week prior to filing it with BaFin and duly account in good faith for any reasonable comments, it being understood that in case of any dispute on the content and any document relating thereto, the Bidder shall, other than in respect of matters concerning Delivery Hero Group’s affairs, have the ultimate decision right; |
| (d) | not apply for any prolongation of the notice period by the BaFin pursuant to Section 14 para. 1 sentence 3 WpÜG, unless the Company gives its prior written consent (such consent not to be unreasonably withheld, conditioned or delayed); |
| (e) | publish the Offer Document within the time period prescribed in Section 14 para. 2 WpÜG, provided that the publication of the Offer Document is not prohibited by BaFin; and |
| (f) | settle the Offer by payment of the Offer Price (as defined in Clause 1.4) (the Offer Completion) against simultaneous transfer of the tendered Delivery Hero Shares without undue delay and in any event no later than seven (7) Business Days (meaning a day on which banks in Frankfurt am Main, Germany, are open for general commercial business), which obligation shall arise only after (i) the additional acceptance period (weitere Annahmefrist) within the meaning of Section 16 para. 2 WpÜG has expired and (ii) all Offer Conditions have been satisfied or validly waived. |
| 1.2 | Subject to the approval by BaFin, the Offer shall be subject only to the following conditions to closing (the Offer Conditions): |
| (a) | As of the expiration of the acceptance period of the Offer (Acceptance Period), the sum of the number of (i) tendered Delivery Hero Shares for which no withdrawal has been declared in a legally effective way, (ii) Delivery Hero Shares held by the Bidder or persons acting jointly with the Bidder pursuant to Section 2 para. 5 WpÜG, (iii) Delivery Hero Shares that are attributed to the Bidder or any of its parent companies pursuant to Section 30 WpÜG and (iv) Delivery Hero Shares that are attributable to the Bidder or any of its Affiliates pursuant to Sections 34 et seqq. German Securities Trading Act (Wertpapierhandelsgesetz, WpHG) equaling in aggregate at least 50% plus one (1) share (in words: fifty per cent plus one share) of the Delivery Hero Shares, other than the Treasury Shares, that are held as of the expiration of the Acceptance Period (the Minimum Tender Condition). |
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| (b) | After publication of the Offer Document and at the latest by 10 November 2027, or such later date that may be authorized by BaFin, provided in no event shall such date extend beyond 10 May 2028 (the Long-Stop Date), all of the decisions and approvals from the competent antitrust authorities in the following jurisdictions necessary to allow Offer Completion having been adopted (including through lapse or expiry of any applicable waiting period) and, to the extent relevant, all conditions contained in such decisions and approvals necessary to allow Offer Completion having been satisfied or complied with (the Delivery Hero Merger Filings and, together with the Asset Purchaser Merger Filings (as defined below), the Regulatory Filings): |
| (i) | European Economic Area (European Commission); |
| (ii) | Jordan; |
| (iii) | Kingdom of Saudi Arabia; |
| (iv) | United Arab Emirates; |
| (v) | Argentina; and |
| (vi) | South Korea, in the event that, before the later of (i) the time the additional acceptance period within the meaning of Section 16 para. 2 WpÜG has expired and (ii) the time the other offer conditions are satisfied, the Korea Fair Trade Commission (KFTC) notifies any Party that Offer Completion is subject to prior clearance under the Monopoly Regulation and Fair Trade Act of Korea. |
| (c) | After publication of the Offer Document and at the latest by the Long-Stop Date, all decisions and approvals from the competent antitrust authorities in the following jurisdictions necessary to allow the consummation of the Asset Purchaser Transaction substantially in accordance with the terms of the Purchase Agreement and, to the extent relevant, all conditions contained in such decisions and approvals necessary to allow such consummation of the Asset Purchaser Transaction having been satisfied or complied with: |
| (i) | Austria; |
| (ii) | Spain; |
| (iii) | Poland; |
| (iv) | European Commission, in case the Asset Purchaser Transaction becomes notifiable to the European Commission instead of Austria, Spain and Poland, e.g., through a referral request; and |
| (v) | Ecuador |
(together, as existing from time to time, the Asset Purchaser Merger Filings);
| (d) | After publication of the Offer Document and at the latest by the Long-Stop Date, financial services regulatory approvals by the competent authorities in the following jurisdictions have been obtained or are deemed to be obtained pursuant to applicable laws in the relevant jurisdiction, including but not limited to the expiry of applicable assessment or waiting periods, or the competent authorities have confirmed that such approvals are not required: |
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| (i) | The Monetary Authority of Singapore has approved the Transaction under Art. 28 of the Payment Services Act 2019 of Singapore for the Acquirors to become a controller of Delivery Hero (Singapore) Pte. Ltd. |
| (e) | After publication of the Offer Document and at the latest by the Long-Stop Date, financial services regulatory approvals by the competent authorities in the following jurisdictions have been obtained or are deemed to be obtained pursuant to applicable laws in the relevant jurisdiction, including but not limited to the expiry of applicable assessment or waiting periods, or the competent authorities have confirmed that such approvals are not required: |
| (i) | The Bank of Greece (i) has approved the Asset Purchaser Transaction or (ii) has not issued a written objection by the end of the statutory assessment period of an indirect qualifying holding by any shareholder in Asset Purchaser in Delivery Hero Payments Single Member S.A pursuant to Article 6 of the Greek Payment Services Directive Law (L.4537/2018) (as amended); |
| (ii) | The Central Bank of Turkey has approved the Asset Purchaser Transaction under Article 12 of the Turkish Regulation on Payment Services and Electronic Money Issuance and Payment Service Providers for Asset Purchaser to become a qualified shareholder of YemekPay Elektronik Para ve Ödeme Hizmetleri A.Ş; |
| (f) | After publication of the Offer Document and prior to the expiration of the Acceptance Period, Delivery Hero has not published any notification pursuant to Article 17 of Regulation (EU) No. 596/2014 of the European Parliament and of the Council (MAR) according to which |
| (i) | a loss equaling half of the share capital within the meaning of Section 92 of the German Stock Corporation Act (Aktiengesetz – AktG) has been suffered; |
| (ii) | an insolvency proceeding has been instituted against the assets of Delivery Hero or the management board of Delivery Hero has applied for the institution of such proceeding; or |
| (iii) | a reason has arisen that would necessitate the filing of an application for the institution of an insolvency proceeding. |
| 1.3 | To the extent legally permissible and other than in respect of Clause 1.2(a), the Bidder is entitled to waive in its sole discretion all or individual Offer Conditions set forth in Clause 1.2 in advance pursuant to Section 21 para. 1 sentence 1 no. 4 WpÜG only, as long as such Offer Conditions have not ultimately lapsed. If any of the Offer Conditions set forth in Clause 1.2 either have not been satisfied on or prior to the applicable date or have definitively lapsed before these dates and the Bidder has not effectively waived them in advance, the Offer shall lapse. In this case, the contracts which come into existence as a result of accepting the Offer will cease to exist and will not be consummated (conditions subsequent); and delivered Delivery Hero Shares will be returned. In the event that any antitrust or other regulatory authority (incl. BaFin) does, or is likely to, reject or refuse to approve the Asset Purchaser Transaction, the Parties shall enter into good faith discussions to cooperate in identifying a mutually acceptable solution on the basis of the terms of this Agreement to facilitate Offer Completion. |
| - 6 - |
| 1.4 | The consideration per Delivery Hero Share (Gegenleistung) to be offered to the shareholders of the Company in the Offer Document shall be in cash only and shall be at least EUR 41.50 per Delivery Hero Share (the Offer Price). |
| 1.5 | Uber hereby guarantees by way of an independent promise of guarantee (selbständiges Garantieversprechen) within the meaning of Section 311 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) that the Bidder, and any other party acting on behalf of Bidder, will (i) satisfy all of its obligations under this Agreement, (ii) have, prior to or concurrently with entry into this Agreement, entered into a bridge facility arrangement with multiple global financial institutions pursuant to which the Acquirors will have available committed financing in accordance with the certain funds standard contemplated under Section 13 para. 1 WpÜG amounting to no less than EUR 11,500,000,000.00 (it being understood that such bridge facility arrangement may be refinanced in a manner reasonably acceptable to Delivery Hero, subject always to the Bidder’s obligations under Section 13 para. 1 WpÜG) and (iii) finance the Transaction contemplated herein and any of Delivery Hero Group’s indebtedness, subject to applicable law, whether or not financial, actually becoming due and payable in connection with the Offer and/or Offer Completion (subject to the satisfaction of the conditions set forth in Clauses 1.2(f)(i) and 1.2(f)(ii) of this Agreement), it being understood that (i) any proceeds obtained by Delivery Hero Group, in satisfaction of this Clause 1.5 or otherwise, shall be deployed in accordance with the Indebtedness Repayment Waterfall and (ii) the Parties do not expect the new senior secured Term Loan B facility of the Company with a total principal amount of USD 1,336,000,000, fully drawn as of the Effective Date, the Company’s existing USD term facility with a total principal amount of USD 1,332,332,500, fully drawn as of the Effective Date, or the Company’s existing KRW term facility with a total principal amount of KRW 794,029,016,702, fully drawn as of the Effective Date to become due and payable or to otherwise have to be repaid as a result of Offer Completion, and that a securities services enterprise independent from the Acquirors and their affiliates within the meaning of Section 15 AktG (each individually an Affiliate and collectively the Affiliates) will issue a financing confirmation in accordance with Section 13 WpÜG (the Financing Confirmation) substantially in the form as attached hereto in Annex 1.5. The Company hereby confirms, by way of an agreement for the benefit of third parties (Vertrag zu Gunsten Dritter) that, without affecting the Financing Confirmation, the Company, without prejudice to statutory law, will not have any indemnity, reimbursement or other claim against the financial institutions that provide the Financing Confirmation or any financing in connection with the Transaction. |
| 1.6 | Immediately after the Effective Date but only after publication of the ad hoc announcement pursuant to Clause 2.1, Uber shall publish a press release in respect of the Transaction as set forth in Annex 1.6. |
| 1.7 | Within sixty (60) calendar days of the Offer Completion, the Company shall, subject to compliance with applicable law and notably its Fiduciary Duties, issue to the Bidder a number of Delivery Hero Shares notified to the Company by Uber up to the maximum number of Delivery Hero Shares the Company is then authorized to issue with exclusion of subscription rights pursuant to Section 186 para. 3 sentence 4 AktG from authorized capital (Genehmigtes Kapital), which maximum number will be, for the avoidance of doubt, a number of Delivery Hero Shares representing ten percent (10%) of the Company’s fully diluted share capital (as existing from time to time) against a cash contribution equal to the product of the number of such Delivery Hero Shares and the Offer Price it being understood that under no circumstances shall the Company be obligated to increase or further its authorization or the number of Delivery Hero Shares available thereunder. The proceeds from such sale of Delivery Hero Shares shall be used towards the satisfaction and discharge of the Company’s then-outstanding indebtedness in accordance with the Indebtedness Repayment Waterfall. |
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| 2. | Support of the Offer by the Company |
| 2.1 | Immediately after the Effective Date, the Company shall publish an ad hoc announcement pursuant to Article 17 MAR as set forth in Annex 2.1(a) and a press release in respect of the Transaction as set forth in Annex 2.1(b). |
| 2.2 | The Company shall (i) provide the Acquirors with all information for preparation of the Offer Document to the extent reasonably required; (ii) cooperate with the Acquirors in connection with the financing of the Transaction and obtaining the Financing Confirmation and (iii) provide the Acquirors (in reasonable detail) with information about Delivery Hero Group’s financing agreements (including, but not limited to, any loan agreements, notes, bonds, indentures, factoring and leasing agreements) which would be affected by the publication of the Offer Document or the Offer Completion. |
If the Offer complies with the requirements set forth in Clause 1.1(b), as soon as practical and in no event later than two (2) weeks following publication of the Offer Document, the Company will negotiate with the Acquirors in good faith which of its financing agreements referred to in sub-paragraph (iii) may be prematurely terminated and/or prepaid by the relevant member of Delivery Hero Group upon Offer Completion.
| 2.3 | To the extent that indebtedness of the Delivery Hero Group (including the Company’s outstanding convertible bonds) (i) may become due or repayable as a result of the Offer or Offer Completion and (ii) exceeds (x) the Purchase Agreement Proceeds actually received pursuant to Clause 5.1, and/or (y) the proceeds of the share issuance actually received pursuant to Clause 1.7, Uber shall provide, or procure the provision of, a shareholder loan to the relevant member of the Delivery Hero Group on arm’s length and market terms to permit funding of the aggregate (re)payment amount of such indebtedness. |
| 2.4 | If the Offer complies with the requirements set forth in Clause 1.1(b), as soon as practical and in no event later than two (2) weeks following publication of the Offer Document, the Company shall procure that the Management Board will, subject to its Fiduciary Duties, and shall use its reasonable endeavors to procure that the Supervisory Board will, (i) prepare a statement required pursuant to Section 27 WpÜG (begründete Stellungnahme, the Reasoned Statement) either separately or jointly and (ii) publish the Reasoned Statement pursuant to Sections 27 para. 1, 14 para. 3 WpÜG. One (1) week prior to the publication of the Reasoned Statement, Delivery Hero shall make available to the Acquirors and their advisors a draft of the Reasoned Statement for review and comments, and the Company shall procure that the Management Board will, subject to its Fiduciary Duties, and shall use its reasonable endeavors to procure that the Supervisory Board will, take account in good faith of any reasonable comments if and to the extent legally permissible. |
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| 2.5 | If the Offer complies with the requirements set forth in Clause 1.1(b), the Management Board shall, and shall use its reasonable endeavors to procure that the Supervisory Board will, to the extent legally permissible and after having duly and thoroughly reviewed and analyzed the Offer in light of their Fiduciary Duties, state in the Reasoned Statement that, (i) in their reasonable opinion, the Offer is in the best interest of Delivery Hero and (ii) upon receipt of at least one (1) according fairness opinion duly issued by a reputable investment bank or other financial advisor, the Offer Price is fair and adequate (angemessen) and that, therefore, the Management Board and Supervisory Board support the Offer and recommend to Delivery Hero’s shareholders to accept it, except (the following, the Competing Offer Exemption) in case of a publication of an offer announcement pursuant to Section 10 para. 1 WpÜG for a competing public takeover offer within the meaning of Section 29 para. 1, 35 para. 1 WpÜG for the purchase of all Delivery Hero Shares by a party other than the Acquirors or their affiliates (Competing Offer) that was not initiated, solicited or facilitated in material violation of clause 2.6(d) or 2.6(e), if (A) the offer price of the Competing Offer exceeds the Offer Price, (B) the terms and conditions of the Competing Offer in the reasonable opinion of the Management Board and the Supervisory Board, after having duly and thoroughly reviewed and analyzed the Competing Offer, are superior to the Offer, taken as a whole, to Delivery Hero and its shareholders, taking into account (x) any amendment to the Offer made by the Bidder pursuant to Section 21 WpÜG in response to the Competing Offer, (y) all legal, financial and regulatory aspects of the Competing Offer, including certainty of consummation of the Competing Offer, the time likely to be required to consummate the Competing Offer, the financing terms of the Competing Offer, the identity of the Person making the Competing Offer and (z) the nature of the consideration offered in the Competing Offer, (C) the announcement of the Competing Offer occurs prior to the end of the Acceptance Period and (D) the Bidder has not increased its Offer Price to a price at least equal to the price offered under the Competing Offer or otherwise amended the terms and conditions of the Offer in a manner that, in the reasonable opinion of the Management Board and the Supervisory Board, renders the Offer at least equivalent or better with respect to the interests of Delivery Hero and its shareholders as compared to the Competing Offer, taken as a whole, in each case as may be applicable, within the period provided in the following sentence. Prior to any change of recommendation in the Reasoned Statement, Delivery Hero shall notify the Acquirors promptly (and in any event within two (2) Business Days) in writing of the Competing Offer and, within a period of five (5) Business Days following receipt of such notice by the Acquirors, shall negotiate in good faith with the Acquirors to the extent the Acquirors wish to engage in such negotiations, and propose changes to the Offer to obviate the need for the change of recommendation, provided that in the event of any changes to the material terms of the Competing Offer, a new notice and negotiation period shall be required under this sentence except that the negotiation period shall be three (3) Business Days. |
| 2.6 | Unless the Competing Offer Exemption applies (but prior to a change-in-recommendation by the Company in accordance with this Agreement solely, with respect to sections (a) – (c) of this Clause 2.6) and only if the Offer complies with the requirements set forth in Clause 1.1(b), from the Effective Date and to the extent legally permissible (im Rahmen des rechtlich Zulässigen), the Company shall procure that the Management Board will, subject to its Fiduciary Duties, and shall use its reasonable endeavors to procure that the Supervisory Board will, and Delivery Hero shall use its reasonable endeavors to procure that the individual members of the Management Board and of the Supervisory Board will, to the extent legally permissible: |
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| (a) | not withdraw, amend or qualify adversely to the Bidder the statements under Clause 2.4 or the Reasoned Statement or withdraw its intention to give the Reasoned Statement as set forth above in Clauses 2.4 and 2.5; |
| (b) | not do any act, including making any public statement, which (i) is contrary to the statements according to Clause 2.4 or the Reasoned Statement, (ii) should reasonably be expected by a reasonable person to materially jeopardize or materially and adversely affect the success of the timely completion of the Offer, (iii) should reasonably be expected by a reasonable person to materially jeopardize the satisfaction of the Offer Conditions or (iv) recommends that Delivery Hero’s shareholders take or consider taking any such action (together, jointly or individually, with the preceding Clause (a), Negative Offer Effects); |
| (c) | until the end of the additional acceptance period (weitere Annahmefrist) pursuant to Section 16 para. 2 sentence 1 WpÜG, only express a position that is consistent with the statements in Clause 2.4 and the Reasoned Statement in all public communication, including any press interviews, roadshows and informal contacts with the press, investors or the public; |
| (d) | not solicit or recommend (or so agree or resolve to so recommend) the preparation, announcement of intention, or launch of any Competing Offer; |
| (e) | without prejudice to Clause 5 of this Agreement, not, directly or indirectly, through any representative acting on the Company’s behalf, initiate, solicit or encourage the making of any proposals, or have any negotiations with or furnish any information (including by means of due diligence) to another party with the objective of initiating, soliciting or encouraging the making of any such proposals, in each case, with regard to the sale of the Company or its businesses, whether by stock or asset purchase, merger or otherwise, or with regard to any other transaction involving the stock, assets or business of the Company or its Affiliates that is (i) material to the commercial rationale of the Bidder for the Transaction and (ii) not immaterial to the business of the Delivery Hero Group, taken as a whole (a Sale of the Company; provided, that the Asset Purchaser Transaction shall be deemed not to be a Sale of the Company), and the Company shall promptly (and in any event within two (2) Business Days) notify the Acquirors in writing if it is approached by a third party considering a Competing Offer or Sale of the Company and, if applicable and subject to applicable law, thereafter deliver to the Acquirors copies of such written documents (and summary of any material oral communication) concerning a Competing Offer or other proposed Sale of the Company, in each case if received by or delivered to the Company in connection therewith. The Company will keep the Acquirors informed on a reasonably prompt basis of the status of any communication relating to a Competing Offer or Sale of the Company; and |
| (f) | not enter into any agreement relating to a Competing Offer or Sale of the Company or that would prevent the Company from complying with Clause 2.5(e). |
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| 3. | Further support of the Transaction |
| 3.1 | If the Offer complies with the requirements set forth in Clause 1.1(b), to the extent legally permissible (inter alia under applicable competition laws), Delivery Hero hereby undertakes that from the Effective Date to the earlier of (i) the termination of this Agreement and (ii) the Offer Completion, Delivery Hero itself will, and will use its shareholder’s rights that any member of the Delivery Hero Group will, unless approved by Uber (such approval not to be unreasonably withheld, conditioned or delayed and irrevocably deemed granted absent Uber’s written rejection within ten (10) Business Days), in all material respects carry on its business in the ordinary course of business (the Ordinary Course of Business) and, in each case without prejudice to Clause 5 of this Agreement, in particular: |
| (a) | subject to Clause 2.6, refrain from initiating any measures or steps which may have any Negative Offer Effects; |
| (b) | without prejudice to Clause 4.5, cooperate with Uber and provide Uber with all information and assistance as Uber may reasonably request in connection with the Asset Purchaser Transaction, including by (i) using, and procuring that each relevant member of the Delivery Hero Group use, reasonable best efforts to consummate the transactions contemplated by the Purchase Agreement to permit Offer Closing and (ii) not agreeing to any amendment, waiver or modification of any provisions of the Purchase Agreement or granting any consent thereunder, nor terminating, rescinding or withdrawing from the Purchase Agreement, in each case of this Clause (ii) without Uber’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), in each case to the extent legally permissible; |
| (c) | refrain from entering into joint ventures, partnerships or other similar forms of co-operations outside the Ordinary Course of Business with a value in excess of EUR 40,000,000 which are not within the scope of the Delivery Hero business and are material to Delivery Hero Group as a whole (for the avoidance of doubt, not including any customer-supplier co-operations entered into in the Ordinary Course of Business) with third parties unless, in each case, such measure (i) is expressly disclosed to Uber in the due diligence conducted by Uber related to the Transaction prior to the date hereof or (ii) is expressly contemplated by the Asset Purchaser Transaction; |
| (d) | refrain from selling, exclusively out-licensing, transferring, willfully abandoning or encumbering material assets of the Delivery Hero Group taken as a whole (including intangible assets or rights, fixed assets or financial assets, and any investments therein), either directly or indirectly, including, without limitation, by way of a merger or another form of transformation, takeover, acquisition, transfer, disposal or equivalent transaction with one or more third parties or exclusively out-licensing or disposing of any such assets in another manner, in each case, except for, for the avoidance of doubt, (i) non-exclusive licenses granted in the Ordinary Course of Business, (ii) the lapse or abandonment of intellectual property that whether or not material that has reached its final, non-renewable expiration date, (iii) immaterial disposals of assets in the Ordinary Course of Business, (iv) as approved by Bidder in writing or (v) as expressly contemplated by the Asset Purchaser Transaction; |
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| (e) | subject to Section 3.3(c), provided that any adjustments to performance-related elements of Equity Awards pursuant to Section 3.3(c) shall be limited to (i) consistent with past practice, adjustments of underlying key performance indicators due to a bona fide retargeting within Delivery Hero Group due to external factors or changes in market dynamics in the Ordinary Course of Business, provided that the aggregate targets are not increased at the Delivery Hero Group level, (ii) consistent with past practice, good faith discretionary adjustments in connection with the determination of individual achievements the Ordinary Course of Business, or (iii) performance periods ending after 2026 and, in case of (iii), only where performance is dependent on the share price of Delivery Hero, not make any material change in the compensation (whether cash or equity) paid or payable, or benefits that may be provided, to any officer, director or manager or other member, in each aforesaid case, of the corporate bodies of Delivery Hero Group, or pay or agree to pay any bonus or similar payment (other than bonus payments or other amounts to which such officer, director or manager or other corporate body member of the Delivery Hero Group is entitled by contract or incentive programme (in each case without the exercise of discretion) in effect prior to the date hereof and which have been disclosed to Uber, e.g., in the due diligence conducted by Uber related to the Transaction, prior to the date hereof or provided to Uber as soon as practicable following the date hereof) except for any changes made within the Ordinary Course of Business or required by applicable law (subject to Uber being notified without undue delay (unverzüglich) of any generally applicable changes with a year-over-year increase in excess of five percent (5%)); |
| (f) | without prejudice to Clause (e), not cancel or terminate, or materially amend or materially modify, any contract or agreement that is material to the Delivery Hero Group and relates to an annually recurring obligation of the Company or its Affiliates in excess of EUR 20,000,000 (other than modifications or amendments made in the Ordinary Course of Business) or any employee benefit plan; |
| (g) | not enter into any contract or agreement (i) with respect to which any member of the Delivery Hero Group incurs any new liability or payment obligation involving more than EUR 20,000,000 (other than in the Ordinary Course of Business), (ii) that is material pursuant to Clause (f) (other than in the Ordinary Course of Business) or (iii) that may place any material limitation on the method of conducting or scope of the business of the Delivery Hero Group, whether before or after the Offer Completion and is material thereto (as a whole), or the Uber Group, unless, in each case, such measure is expressly contemplated by the Asset Purchaser Transaction; |
| (h) | not enter into any contract, agreement or other arrangement between (i) the Delivery Hero Group on the one hand and (ii) any shareholder, other than any member of the Uber Group, with disclosed holdings to the Company in excess of five percent (5%) of Delivery Hero and/or their respective Affiliates, any person which is, to the Company’s knowledge, close (nahestehend) to any such shareholder of the Delivery Hero Group and/or their respective Affiliates or any of their direct or indirect shareholders within the meaning of IAS 24 or affiliated companies within the meaning of Section 15 et. seq. AktG of such persons; |
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| (i) | not amend or modify any organizational documents of any member of the Delivery Hero Group to the extent such amendment or modification would reasonably be expected to materially adversely affect the direct or indirect equityholders of Delivery Hero or the Uber Group’s ability to consummate the Offer Completion; |
| (j) | not, and use its shareholder’s rights to procure that no member of the Delivery Hero Group will, enter into, extend or materially amend any commercial arrangement, commitment or other agreement (whether or not in the Ordinary Course of Business) that would, or would reasonably be expected to, materially limit or restrict the ability of the Uber Group, as would be existing post Offer Completion, to conduct its business following the Offer Completion, including, without limitation, and subject to the aforesaid, (i) any non-compete, non-solicitation or other restrictive covenant relating to ridesharing, mobility or delivery services, (ii) any exclusivity, preferred-partner, most-favoured-nation or channel-exclusive arrangement with any ridesharing, mobility or delivery platform or provider, or (iii) any arrangement granting any third party rights that would restrict the Uber Group’s freedom to operate or compete post Offer Completion; |
| (k) | not split, combine or reclassify any of the Company’s capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, Delivery Hero Shares of its capital stock and not make any resolution proposal to Delivery Hero’s shareholders’ meeting to any such effect, in each case except for the following issuances: (i) the issuance of Delivery Hero Shares for the settlement of Equity Awards outstanding as of the Effective Date, which cannot reasonably, under (x) their terms or (y) applicable law, including Fiduciary Duties of the Supervisory Board (and, where applicable, its audit committee), be settled in cash or where the cash settlement would unduly constrain the business of the Delivery Hero Group, taking into account its bona fide cash needs and available liquidity, and, in each case, only after Delivery Hero has used reasonable best efforts to achieve a cash settlement in accordance with Clause 3.3, it being understood that cash settlement shall be the preferred means of settlement and that the Company shall use reasonable best efforts to obtain the approval of the Supervisory Board (and, where applicable, its audit committee) for a cash settlement, provided that the aggregate issue price (Ausgabebetrag) for the total number of Delivery Hero Shares issued under this sub-paragraph (i) shall not exceed EUR 300,000,000; (ii) the issuance of Delivery Hero Shares arising from the grant of Equity Awards under the 2027 refreshment equity award programmes in an aggregate amount not exceeding EUR 374,000,000.00 (such number not including retention bonuses through such programmes) and without in any way affecting the proviso to this Clause 3.1 (including the Retention Cap), as shared with Uber, it being understood that the recipients under such programme will include employees affected by the Asset Purchaser Transaction, including such employees receiving grants intended to cover the forfeiture of equity awards that would occur if the Asset Purchaser Transaction occurs mid-quarter, provided that any such awards are settled in cash and, where permitted by applicable law, are not subject to any accelerated vesting, payment or settlement upon or in connection with a change of control (including Offer Completion); (iii) retention awards granted in accordance with, and subject to the limitations set forth in, the proviso to this Clause 3.1 (including the Retention Cap); (iv) any Equity Awards required for the compensation for the year 2027 of the Management Board of Delivery Hero SE (in an aggregate amount not exceeding EUR 18,000,000) which are not subject to any accelerated vesting; and (v) the issuance of Delivery Hero Shares arising from the conversion of convertible notes outstanding as of the Effective Date in accordance with their terms (collectively, Permitted Issuances); |
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| (l) | not authorize, make, declare or pay any dividends on or make any distribution with respect to outstanding Delivery Hero Shares of capital stock (whether in cash, assets, stock or other securities of any member of the Delivery Hero Group); |
| (m) | not permit any member of the Delivery Hero Group to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, other than the Transaction or intra-group reorganization solely among wholly-owned members of the Delivery Hero Group undertaken in the Ordinary Course of Business; |
| (n) | not permit any member of the Delivery Hero Group to make or commit to make any acquisition of any other third person or business or make any loans, advances or capital contributions to, or investments in, any such person with a value in excess of EUR 20 million in the aggregate, except in the Ordinary Course of Business (such as, e.g., loans to vendors and riders); provided, however, that no member of the Delivery Hero Group shall make any acquisition of any other person or business or make loans, advances or capital contributions to, or investments in, any other person that would reasonably be expected to prevent, materially impede or materially delay the consummation of the Transaction; |
| (o) | not establish any shareholder rights plan or grant any shareholder rights or issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock or other equity ownership interest in any member of the Delivery Hero Group or any securities convertible into or exchangeable for any such shares or equity ownership interest, or any rights, warrants or options to acquire any such shares of capital stock, equity ownership interest or convertible or exchangeable securities, in each case except for any intra-group reorganization solely among wholly-owned members of the Delivery Hero Group (other than the Company) undertaken in the Ordinary Course of Business; |
| (p) | not make any resolution proposal to Delivery Hero’s shareholders’ meeting related to structural capital measures, enterprise agreements pursuant to Section 291 AktG (except with any subsidiaries of Delivery Hero), or measures, other than with the involvement of wholly owned subsidiaries, under the German Transformation Act (Umwandlungsgesetz – Transformation Act); |
| (q) | not, directly or indirectly, purchase, redeem or otherwise acquire any shares of the capital stock of any member of the Delivery Hero Group or any rights, warrants or options to acquire any such shares; |
| (r) | not incur, assume or guarantee any new financial indebtedness for borrowed money, other than (i) borrowings under credit or loan agreements not exceeding EUR 50,000,000 in the aggregate for the Delivery Hero Group, (ii) guarantees, factorings and reverse-factorings in the Ordinary Course of Business and (iii) financial indebtedness among the Company and any other member of the Delivery Hero Group; |
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| (s) | not enter into, extend, amend or terminate any material interest rate, currency, equity, commodity or other swaps, hedges, derivatives, forward sales contracts or other similar financial instruments, in each case other than in the Ordinary Course of Business and with a net effect on the Delivery Hero Group’s consolidated profit and loss statement in excess of EUR 10,000,000 million; |
| (t) | not make any capital expenditures which go beyond the Ordinary Course of Business (which shall encompass Dmart-related expenditures) and are in excess of the amount of EUR 25,000,000 million in the aggregate, provided that expenditures may be made in the Ordinary Course of Business as reasonably necessary to reflect changed circumstances, subject to good-faith prior consultation with the Acquirors; |
| (u) | not permit any member of the Delivery Hero Group to materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except (i) with the objective to harmonize internal/management and external reporting and (ii) as required by International Financial Reporting Standards or other applicable accounting standards, financial regulatory rule or policy or applicable law, except in connection with the Asset Purchaser Transaction; |
| (v) | not file or make any change to any tax election which election is material in relation to the taxes of the relevant jurisdiction, except for tax elections required to be made annually to the extent consistent with prior practice, as required by applicable law or as contemplated in connection with the Asset Purchaser Transaction; and |
| (w) | not permit any director or officer of the Delivery Hero Group to, agree, authorize, or consent in writing or otherwise, to take any of the foregoing actions that are prohibited pursuant to this Clause 3.1; |
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provided that nothing in this Clause 3.1 or otherwise in this Agreement shall restrict, impair, prevent or delay the Company, the Management Board and/or the Supervisory Board from (i) the execution, implementation and consummation of (y) Permitted Issuances and/or (z) measures or agreements previously publicly disclosed by the Company by way of a corporate news announcement published via EQS under the “Corporate News” category within the 12 months prior to the date hereof (excluding shareholder letters and any statement as to strategy or other generalized statement of intent contained therein), (ii) compliance with any term contemplated under this Agreement, the Purchase Agreement or otherwise in connection with the Asset Purchaser Transaction, (iii) re-financing any indebtedness for borrowed money of Delivery Hero Group existing as of the Effective Date, following prior consultation with the Acquirors, if such re-financing indebtedness, (t) is in a principal amount not to exceed the amount of indebtedness being refinanced, (u) does not contain lending commitments in excess of those contained in the facilities being refinanced, (v) is on terms which, when taken as a whole, are in the Management Board’s and/or the Supervisory Board’s reasonable discretion more favorable to the Company than the terms applicable to such indebtedness being refinanced, (w) cannot be expected to lead to an acceleration of such indebtedness (including outstanding principal, accrued and unpaid interest, default or penalty interest, break costs, funding losses, prepayment premia, make-whole amounts, call protection, exit fees and consent, waiver and similar fees, as applicable) in connection with Offer Completion which would increase the total amount of indebtedness that can be expected to become repayable in connection with Offer Completion as compared to the Parties’ expectations as of the Effective Date, (x) is prepayable at any time (subject to customary notice requirements and minimum amounts) and, in case of a premium or penalty, satisfies limb (iii)(v) (other than customary reference rate breakage), (y) permits the consummation of the Offer Completion and (z) is not in the form of securities registered under United States federal securities laws, (iv) revising the remuneration system for the Management Board and implement such revision, provided that (A) any such revision is in the Ordinary Course of Business, and (B) the payment increase for any individual Management Board member shall not exceed 10% per annum relative to such member’s remuneration level for the Company’s immediately preceding financial year, (v) pursuing, executing in respect of and/or consummating the agreement with Grab Holdings Limited to sell Delivery Hero Group’s delivery platform business in Taiwan, and/or (vi) granting new cash-based equity or equity-linked instruments or retention awards (whether under existing incentive plans or any new plans established for such purposes) they deem reasonably necessary or conducive for purposes of retaining the employees, talent, staff and/or members of the Management Board through and/or post Offer Completion for purposes and as basis of the mid- and long-term success of the Post-Closing Business, which measures shall be permitted as an exception to Clauses 3.1(e), 3.1(g) and 3.1(r), provided that (x) the aggregate value thereof shall not exceed EUR 50,000,000.00 (the Retention Cap), (y) any such cash-based equity, equity-linked or cash-based retention awards may, to the extent permitted by applicable law, only become due and payable after March 15, 2028 and shall not be subject to any accelerated vesting, payment or settlement upon or in connection with a change of control (including Offer Completion), and (z) any unused portion of the Retention Cap may be utilized by the Company following Offer Completion, subject to the limitations set forth herein.
| 3.2 | Nothing in this Agreement shall prevent Delivery Hero, the Management Board, the Supervisory Board or any member of the Delivery Hero Group from: |
| (a) | providing information duly requested or required by a regulatory authority, provided, however, the Company, to the extent legally permissible, shall provide prior written notice thereof to Uber to enable Uber to seek a protective order or otherwise prevent such disclosure in accordance with applicable law; or |
| (b) | acting in accordance with their fiduciary duties, including taking account of the interests of any holders of Delivery Hero Shares other than Bidder and its Affiliates, in particular but not limited to, (i) the duty of care and loyalty under Sections 76, 93 and 116 German Stock Corporation Act (Aktienge-setz – AktG), (ii) the duties under Section 33 para. 1 sentence 1 WpÜG and (iii) the managerial tasks and duties to the extent legally required (Sections 76, 93 as well as 116 AktG) (the Fiduciary Duties). |
| 3.3 | With respect to all outstanding equity-based awards of the Delivery Hero Group (including options, RSUs, PSUs and other equity-based awards, the Equity Awards), Delivery Hero shall, to the extent legally permissible, and so that such Equity Awards are settled in cash rather than in Delivery Hero Shares: |
| - 16 - |
| (a) | exercise, and procure that the relevant member of the Delivery Hero Group exercise, any settlement election or right available to it under the terms of the relevant Equity Award in favour of cash settlement and otherwise in accordance with the terms of such Equity Award; |
| (b) | to the extent cash settlement of any Equity Award requires the consent of, or an amendment to the arrangements with, the relevant beneficiary, use reasonable best efforts to obtain such consent or amendment; |
| (c) | use reasonable best efforts to procure that settlement of Equity Awards be consummated at actual performance in respect of performance-related elements or, where performance is related to the Delivery Hero share price and can thus not be reasonably measured (which shall only apply from 2027 onwards), target, and in any event in accordance with the terms of the Equity Award; and |
| (d) | for the avoidance of doubt, notwithstanding Clause 3.1 (in particular Clause 3.1(e) and Clause 3.1(f)), any action taken pursuant to this Clause 3.3 shall be deemed permitted for the purposes of Clause 3.1. |
| 3.4 | Delivery Hero shall, to the extent legally permissible, promptly notify the Acquirors in writing of any event, circumstance or development that has resulted in, or would reasonably be expected to result in, a material adverse effect on the business, operations or financial condition or prospects of the Delivery Hero Group, taken as a whole, in respect of: (i) any material departure from the business plan; (ii) the departure of any member of the key management of Delivery Hero; (iii) the commencement of any material lawsuit, arbitration, governmental inquiry or regulatory proceeding against any member of the Delivery Hero Group; or (iv) any capital expenditure commitment of a member of the Delivery Hero Group. |
| 3.5 | The Acquirors shall, to the extent legally permissible, promptly notify the Company in writing of any event, circumstance or development that has resulted in, or would reasonably be expected to result in, a material deterioration of the Acquirors’ ability to raise debt and/or equity financing. |
| 3.6 | Delivery Hero shall provide the Acquirors with reasonable access to books, records, documents, and other papers, relevant personnel from relevant functions, and shall otherwise cooperate with the Acquirors in good faith (including by making reasonable efforts to collect and provide to the Acquirors information which is under the control of Delivery Hero) as reasonably necessary (i) to comply with reporting, disclosure, filing or other requirements imposed on the Acquirors by applicable law (including tax law) in any jurisdiction as substantiated by the Acquirors, (ii) to structure or implement the Asset Purchaser Transaction, or (iii) to prepare for integration planning for the period following settlement of the Transaction, to the extent that the purpose of such access is solely to facilitate the Transaction (including compliance with applicable law), the Asset Purchaser Transaction or integration planning for the period following settlement of the Transaction, in each case, to the extent legally permissible. To the extent that the exchange of competitively sensitive information is required for purposes of this Clause, such exchange shall be conducted on a clean-team basis. Nothing in this Clause shall give the Acquirors, directly or indirectly, rights to control or direct the operations of Delivery Hero prior to settlement of the Transaction. In furtherance of the foregoing, Delivery Hero agrees to the covenants attached hereto as Annex 3.6. The Acquirors shall reimburse Delivery Hero for all reasonable and documented out-of-pocket costs incurred by Delivery Hero in connection with its obligations under this Clause 3.6. |
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| 4. | Regulatory Clearances cooperation |
| 4.1 | Without affecting any of the Offer Conditions set out in Clause 1.2, as soon as reasonably practicable and in any event within three (3) Business Days after the Effective Date, the Acquirors shall, in cooperation with Delivery Hero, finally determine all (i) merger control, FDI and foreign subsidies clearances that are reasonably required, pursuant to the respective applicable laws, for the Offer Completion, and (ii) any other regulatory or governmental clearances required in connection with the Offer consummation ((i) and (ii) together the Clearances). |
| 4.2 | The Acquirors shall, upon permitting and duly accounting for the Company’s commenting prior to any material step relating to the Clearances, lead and have ultimate control over the strategy for obtaining the Clearances (for the avoidance of doubt, not including clearances related to the Asset Purchaser Transaction), including any negotiations with governmental authorities in connection therewith, subject to the terms of this Agreement and making best efforts to promptly and sufficiently consult with Delivery Hero on all such aspects. |
| 4.3 | The Bidder and, as applicable, Uber and the Delivery Hero Group (solely to the extent legally required) will file for the required Clearances as soon as reasonably practicable and without undue delay. Without prejudice to Clause 4.5, within five (5) Business Days following the Effective Date, Bidder shall initiate pre-notification discussions with the European Commission providing detailed information on the structure of the Transaction, including the role of the Asset Purchaser Transaction. Where relevant, the filing(s) shall be made by the Bidder on behalf of all parties involved (to the extent permitted under applicable law). All filing fees or other disbursements in connection with the Clearances shall be borne by the Bidder. |
| 4.4 | In order to obtain the Clearances, subject to Clauses 4.2 and 4.5, the Acquirors and the Delivery Hero Group shall cooperate in good faith, to the extent legally permissible, in all respects with each other in the preparation of all relevant filings (including providing the other party (or the other party’s outside counsel, as the case may be) with all information reasonably required for the filings for the Clearances, governmental authority requests and regulatory strategy development, in each case on an accurate and timely basis) and, in connection with any submission, investigation or inquiry, supply to any competent authority as promptly as practicable any additional information requested pursuant to any applicable law. In connection with the proceedings required to obtain the Clearances, each of Uber and Delivery Hero shall (i) make best efforts to consult the other sufficiently in advance of any material communication or filing with a competent authority, such that the other Party is in a position to comment meaningfully before making any material submission or filing and shall take into account the other Party’s comments in good faith; (ii) promptly provide each other with copies of any material written communication (or written summaries of any material non-written communication) with any competent authority, and (iii) to the extent permitted by the applicable competent authority, give the other Party the opportunity to attend and participate in any substantive in-person meetings, substantive telephone calls or substantive conferences with such competent authority. |
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| 4.5 | The Acquirors shall, and shall procure that their Affiliates will, use best efforts to obtain the Clearances set forth in Clauses 1.2(b) and 1.2(d) as soon as reasonably possible and prior to the Long-Stop Date, including (to the extent relating to them) offering and accepting any remedies or conditions, including any divestiture, sale, licensing, hold-separate, behavioural remedy relating to the business and assets of the Delivery Hero Group or the Acquirors and their Affiliates, if and up to the extent the competent authority is prepared to grant such Clearance only subject to the satisfaction of such remedies or conditions, provided that nothing in this Agreement shall require the Acquirors to offer or accept any remedy or condition that (x) would, taking into account all circumstances existing at the time, be adverse and material to the Delivery Business operations of the Post-Closing Business and the Uber Group, taken as a whole (while giving effect to the Asset Acquirer Transaction as envisaged as of the Effective Date), or (y) is not conditioned on the occurrence of the Offer Completion. |
| 4.6 | Additionally, no member of the Delivery Hero Group shall, without Uber’s advance written consent in Uber’s sole discretion and without prejudice to anything in Clause 4.5, directly or indirectly, propose, negotiate, consent to, undertake, or agree to any sale, divestiture, lease, license, transfer, disposition, encumbrance, restriction, impairment, limitation of freedom of operation, or hold separate of any assets, licenses, properties, operations, rights, product lines, businesses, or interests of the Delivery Hero Group or any other remedies in connection with obtaining any Clearances. Delivery Hero shall, if requested by Uber, propose, negotiate, consent to, undertake, or agree to such actions required to obtain any Clearance, so long as such action is a prerequisite for the occurrence of the Offer Completion. |
| 4.7 | Neither the Acquirors nor members of the Delivery Hero Group shall (and the Acquirors shall procure that none of their Affiliates will) take any one (1) or multiple action(s) (including acquiring or agreeing to acquire any business, person or division thereof (through acquisition, license, joint venture, collaboration or otherwise)) that would prevent, materially hinder or materially delay the receipt of the clearances that are Offer Conditions. |
| 4.8 | In exchanging or conveying information, submissions, correspondence and communications, to the extent required by applicable law, competitively or commercially sensitive information of one Party shall be redacted from the version shared with the other Party. Such non-confidential versions shall be supplied without undue delay and the exchange of any competitively or commercially sensitive information prohibited from being shared among the Parties by applicable law shall be limited to legal advisors and/or outside advisors provided that such exchange shall be conducted in a manner reasonably designed to preserve applicable lawyer/client and lawyer work product privileges. |
| 5. | Obligations regarding Purchase Agreement proceeds from Asset Purchaser Transaction |
| 5.1 | Delivery Hero undertakes that any cash proceeds received by Delivery Hero or any company of the Delivery Hero Group in connection with the Asset Purchaser Transaction (the Purchase Agreement Proceeds) shall be applied towards the satisfaction and discharge of indebtedness of the Delivery Hero Group in the following order of priority (the Indebtedness Repayment Waterfall): (i) to the extent required under the terms of that certain credit agreement originally dated May 12, 2022 (as amended), by and among the Company and certain of its Affiliates as borrowers, the lenders from time to time party thereto, J.P. Morgan SE as administrative agent, and HSBC Bank USA, N.A. as collateral agent, towards the mandatory prepayment of the lenders thereunder, (ii) indebtedness associated with Equity Awards and the retention instruments contemplated under (iv) in the proviso of Clause 3.1; (iii) the Company’s then-outstanding convertible bonds; and (iv) thereafter any other indebtedness for borrowed money of the Delivery Hero Group (other than indebtedness owed by one member of the Delivery Hero Group to another member of the Delivery Hero Group). |
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| 5.2 | Delivery Hero shall notify the Bidder in writing within three (3) Business Days following receipt of any Purchase Agreement Proceeds, specifying (i) the date of receipt, (ii) the amount of Purchase Agreement Proceeds received, and (iii) the intended use of the Purchase Agreement Proceeds in compliance with Clause 5.1. |
| 6.1 | The Bidder acknowledges that Delivery Hero pursues a defined and successful business strategy which comprises, inter alia, the support of the existing business and operating model. The Post-Closing Business will generally continue to pursue and support this business strategy and be led by the Management Board in line with the entrepreneurial culture prevailing within the Uber Group. Uber shall, and shall cause its Affiliates to, cooperate with the Management Board to maximize the efficiencies and gains to be made for the Post-Closing Business, in each case, taking into account strategy and the Asset Purchaser Transaction. In cooperation with the Management Board and the Supervisory Board in the best interest of the Post-Closing Business, the Acquirors shall, acting in good faith and subject to applicable law, procure that the relevant members of the Uber Group will, during a period of thirty-six (36) months following the Effective Date: |
| (a) | preserve and support the corporate culture of Delivery Hero Group, taking into account the Asset Purchaser Transaction; |
| (b) | retain the presence of Delivery Hero Group’s operational hubs and related operations in Seoul, Riyadh, Montevideo, Barcelona, Berlin, Buenos Aires, Dubai and Singapore; |
| (c) | use commercially reasonable efforts to invest an amount of EUR 2 billion in Germany through 2031, including into the Post-Closing Business, with a focus on developing its local corporate workforce, growing its nationwide business, and launching autonomous vehicle deployments and partnerships with the German automotive industry; and |
| (d) | consider leveraging superior and/or complementary technology components of the Delivery Hero Group for the Uber Group’s global platform and beyond the scope and purview of the Post-Closing Business, provided that the foregoing shall not be to the exclusion of the Asset Purchaser. |
| 6.2 | The Acquirors shall not, and shall procure that none of their Affiliates will, cause a relocation of Delivery Hero’s corporate headquarters out of Berlin during the term of this Agreement. |
| 7. | Brand |
The Parties acknowledge that Delivery Hero owns several brands in certain jurisdictions with a high degree of brand awareness by the respective markets and customers. As soon as is reasonably practicable (but in any event, no later than thirty (30) days prior to expected Offer Completion), the Parties will negotiate in good faith and enter into a license agreement at arm’s length conditions, but with effect only upon Offer Completion, allowing Uber and/or its Affiliates to use Delivery Hero’s trademark and related trademark rights, in particular the trademark designation “Delivery Hero” and any variations or derivatives thereof, the terms of which may include the grant of certain exclusive rights.
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| 8.1 | Management Board / Role of Management |
After the Offer Completion, the Management Board shall, subject to the supervision by the Supervisory Board, continue to manage Delivery Hero independently and exclusively in its own responsibility pursuant to and within the framework of German law. Consequently, following Offer Completion, the Bidder shall not issue directives to the Management Board or any of its members, unless there is a domination agreement within the meaning of Section 291 AktG concluded, and subject to its legal obligations to support the implementation of this Agreement, there is no obligation on the part of the Management Board or any of its members to carry out or refrain from a legal transaction or act at the inducement of the Bidder, whether in form of a request, a demand, or an instruction.
| 8.2 | Supervisory Board |
| (a) | Following Offer Completion, Uber intends to be represented on the shareholder-assigned seats of the Supervisory Board in a manner which appropriately reflects its shareholding following the Offer Completion including the chair of the Supervisory Board, subject to the appointment of its representatives by the competent court pursuant to Section 104 AktG and/or a respective resolution of Delivery Hero’s shareholders’ meeting. |
| (b) | Delivery Hero shall use its reasonable endeavors to the extent legally permissible and possible to ensure that after the Offer Completion such number of existing members of the Supervisory Board as referred to in the principle in Section 8.2(a) will resign from the Supervisory Board in accordance with the articles of association of Delivery Hero, and will be replaced by a corresponding number of representatives of Uber to be appointed in accordance with a respective resolution of Delivery Hero’s annual shareholders’ meeting and/or Section 104 AktG and that the applications to the court and the selection of potential Supervisory Board candidates to be included therein will be prepared (but not filed prior to the settlement of the Transaction) in cooperation with the Bidder following satisfaction of all Offer Conditions and prior to the settlement of the Transaction to allow for appointment of the replacement Supervisory Board members as soon as practicable but in any event within two (2) weeks after the settlement of the Transaction. |
| (c) | For so long as the Company’s shares are listed on the regulated market, the Supervisory Board shall at all times include no fewer than two (2) members who are independent within the meaning of the German Corporate Governance Code (Deutscher Corporate Governance Kodex - DCGK). |
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| 9. | Workforce |
| 9.1 | General Commitment |
| (a) | The Bidder acknowledges that the dedicated workforce of the Delivery Hero Group is the foundation for the current and future success of Delivery Hero and the Post-Closing Business and that its current and future success and of Delivery Hero depends on the creativity and performance of Delivery Hero Group’s workforce and their potential for innovation both which heavily rely on the competence and the commitment of the employees of Delivery Hero. |
| (b) | The Bidder shall support the Post-Closing Business and its Management Board (i) in maintaining and developing an attractive and competitive framework to retain an excellent employee base and (ii) in the continued effort to attract talents, taking into account the Asset Purchaser Transaction. |
| (c) | Upon the earlier of (i) entry into an enterprise agreement, (ii) consummation of a delisting of the Delivery Hero Shares from the regulated market and (iii) the implementation of a squeeze-out, the Bidder shall, with the consent of the committee of the Supervisory Board responsible for the approval of related party transactions, use reasonable efforts to work collaboratively with Delivery Hero to develop an incentive award programme for senior leadership of the Delivery Hero Group at the level of vice president (equivalent) and above, other than any member of the Management Board, with the precise terms of any such programme to be determined in good faith between the Parties taking into account, among other things, (i) the relevant beneficiary’s entitlements as of the date of Offer Completion, (ii) the compensation principles applied by the Uber Group’s Delivery Business in the relevant geographies from time to time and (iii) the circumstances at the relevant time. |
| (d) | To the extent that employees of Uber or any of its Affiliates, each acting reasonably and duly accounting for (i) Delivery Hero Group’s hiring and retention needs and (ii) the culture referred to in Clause 6.1, are assigned to, seconded to or employed by any member of the Delivery Hero Group, this shall be without prejudice to the provisions of this Agreement. |
| 9.2 | No Reduction of Workforce / Further Bidder’s Commitments |
The Bidder undertakes (except as required by law or as may be otherwise recommended by the Management Board and/or Supervisory Board and taking into account the Asset Purchaser Transaction):
| (a) | to support an adequate growth of the workforce of the Delivery Hero Group in line with business development and otherwise consistent with industry standards; |
| (b) | to respect the rights of the Delivery Hero Group employees and its employee representatives; |
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| (c) | through the later of (i) the conclusion of a domination and profit transfer agreement (Beherrschungs- und Gewinnabführungsvertrag) between the Bidder or an Uber Affiliate and Delivery Hero within the meaning of Section 291 AktG or the implementation of a squeeze-out of the minority shareholders of Delivery Hero, whichever is earlier, and (ii) the expiration of the term in accordance with Clause 13.1, not to cause Delivery Hero to issue terminations for operational reasons (betriebsbedingte Kündigungen) of employees and the Bidder does not intend to cause Delivery Hero in Seoul, Riyadh, Montevideo, Barcelona, Berlin, Buenos Aires, Dubai and Singapore to reduce the remaining current workforce of the Delivery Hero Group in excess of workforce reductions recommended by the Management Board, in each case unless Delivery Hero comes into a situation in which its existence is at risk and therefore justifies, or otherwise requires, compulsory redundancies (betriebsbedingte Kündigungen); and |
| (d) | to support the adequate participation of Delivery Hero’s management and employees in Delivery Hero’s success. |
10. Corporate and post completion measures
| 10.1 | Nothing in this Agreement shall prevent any of the Parties to seek to enter into and/or to adopt resolutions in favor of any enterprise agreement pursuant to Section 291 AktG, merger under the Transformation Act, change of corporate form (conversion) under the Transformation Act, squeeze-out under the AktG or the WpÜG, merger squeeze-out under the Transformation Act or integration under the AktG, delisting and other similar measures (Reorganisation Measures) in relation to the Company and/or the Bidder, provided that the Acquirors covenant vis-à-vis the Company that, prior to the end of term of this Agreement, none of them or any of their Affiliates will enter into any enterprise agreement with the Company or any member of Delivery Hero Group pursuant to Section 291 AktG. Following any merger under the Transformation Act of the Company and the Bidder, all stipulations herein on rights and obligations of the Company shall apply to the merged company mutatis mutandis. |
| 10.2 | In the event of the implementation of a Reorganisation Measure and subject to applicable law, nothing in this Agreement shall, upon reasonable prior coordination with the Management Board and the Supervisory Board, prevent the Acquirors or another member of the Uber Group to take steps to implement measures which are directed at fully realizing synergy effects from the envisaged business combination or optimizing the tax structure or realizing tax benefits of the combined group. |
| 10.3 | The Parties agree that integrating Delivery Hero into the Uber Group is in the Parties’ best interest. In the event that the Acquirors intend implementing a measure referred to in Clauses 10.1 or 10.2, Delivery Hero undertakes, to the extent legally permissible and subject to its assessment in accordance with its Fiduciary Duties at the time, to support, such implementation. |
| 10.4 | The Acquirors shall indemnify and hold harmless the Company and each member of the Delivery Hero Group, as well as any member of its and their corporate bodies as third party beneficiaries (Vertrag zu Gunsten Dritter), from and against any and all losses, damages and reasonable expenses (including reasonable advisors’ fees) arising out of or resulting from any fines or penalties imposed by any governmental or regulatory authority to the extent directly resulting from any action or omission initiated, directed or endorsed by the Uber Group in connection with any regulatory filing, notification or clearance process relating to the Clearances (i) in respect of which the Company has expressed specific concerns in writing (incl. text form) or (ii) which was taken or adopted without the Company’s knowledge. |
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| 10.5 | In the event that Offer Completion has not occurred by the Long Stop Date, the Parties shall (and shall procure that any Affiliate and person acting jointly will), during the period between the time that it has become apparent that no Offer Completion will occur and the first (1st) anniversary thereof, discuss in good faith how to proceed in respect of the Acquirors’ then existing holdings in Delivery Hero Shares, it being understood that any measure to be adopted by any member of the United Group shall give due consideration to not materially and adversely affect the trading price of the Delivery Hero Shares, taking into account prevailing liquidity, trading volumes, blackout periods and applicable laws. |
| 11. | Integration Planning |
| 11.1 | Following the expiry of the Acceptance Period of the Offer and to the extent legally permissible, Delivery Hero and Uber shall cooperate in good faith and use commercially reasonable efforts to discuss, plan and prepare for such operational, commercial and technical measures as may be appropriate to facilitate the integration of the Delivery Hero Group into the Uber Group. Additionally, following the occurrence of the Offer Completion and subject to applicable law, Delivery Hero and Uber shall cooperate in good faith and use commercially reasonable efforts to evaluate the use of the Uber Group’s technology and services by the Post-Closing Business, on arm’s-length terms, to reduce costs and improve customer experience for the Post-Closing Business’s customers. |
| 11.2 | To the extent legally permissible and subject to applicable antitrust, merger control and clean-team requirements, as soon as reasonably practicable following the Effective Date (and in any event within twenty (20) Business Days thereof), the Parties shall establish an integration committee (the Integration Committee) comprising four (4) members, two (2) of whom shall be nominated by Delivery Hero and two (2) of whom shall be nominated by Uber. The Integration Committee shall: |
| (a) | develop and oversee an integration roadmap directed at implementing the business strategy set forth in Clause 6; |
| (b) | monitor progress against the integration roadmap and report to the Management Board and to Uber’s executive leadership team on a regular basis (and in any event no less frequently than quarterly); |
| (c) | coordinate with the Management Board and relevant functions of Uber to ensure that the objectives set forth in Clause 6 are achieved within the timeframes contemplated therein; and |
| (d) | make recommendations to the Management Board and an independent member of the Supervisory Board and to Uber regarding any adjustments to the integration roadmap as may be necessary or appropriate to achieve the objectives set forth in Clause 6. |
| 11.3 | The Parties agree that a dedicated global integration team within Delivery Hero, under supervision of the Integration Committee, shall coordinate the operational integration, subject to local law requirements, with the local brands and operating companies of the Delivery Hero Group. |
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| 12. | Corporate approvals |
| 12.1 | The Acquirors hereby confirm that their respective competent corporate bodies have agreed to concluding and executing this Agreement and to pursue the Offer. No further approvals or permissions are required on the Acquirors’ part for concluding and executing this Agreement. |
| 12.2 | Delivery Hero hereby confirms that the Management Board agreed to concluding and executing this Agreement and that the Supervisory Board approved such decision by the Management Board and that no further approvals or permissions are required on Delivery Hero’s part for concluding and executing this Agreement. |
| 13. | Term and termination |
| 13.1 | Except as otherwise expressly specified herein, the Agreement shall become effective upon signing of this Agreement and shall have a fixed term, ending thirty six (36) months after the Effective Date unless terminated under the provisions of this Clause 13.1. Notwithstanding the foregoing, the obligations of Delivery Hero under Clause 5 shall remain in full force and effect until the date falling twenty-four (24) months after Offer Completion. The Agreement may be terminated solely by mutual agreement of the Bidder (which is hereby irrevocably authorized to act for Uber) and Delivery Hero or pursuant to the following provisions and with immediate effect by giving notice thereof to the other Party, |
| (a) | by Delivery Hero or the Bidder (acting in its own name or on behalf of Uber) in the following cases: |
| (i) | if the Offer lapses as result of non-satisfaction of the Offer Conditions or the conditions within the meaning of Section 18 para. 1 WpÜG (Angebotsbedingungen) are no longer capable of being satisfied; or |
| (ii) | if the offer announcement of a Competing Offer has been published and the Reasoned Statement has been amended such that the statements set out in Clause 2.5 are no longer reflected; provided, however, that this Clause (ii) shall permit a termination by Delivery Hero only if the Reasoned Statement has been amended in material compliance with the requirements and procedures set forth in Clauses 2.5 and 2.6 (including, for the avoidance of doubt, the negotiation periods set forth in Clause 2.5 in all respects) and the Competing Offer did not result from a material breach of Clause 2.5 or 2.6. |
| (b) | by Delivery Hero in the following cases: |
| (i) | BaFin has prohibited the publication of the Offer Document or the Offer Document has otherwise not been published in accordance with Section 14 para. 1 and para. 3 WpÜG; |
| (ii) | the offer price offered in the Offer is lower than the Offer Price; |
| (iii) | the Offer contains conditions within the meaning of Section 18 para. 1 WpÜG (Angebotsbedingungen) that differ from the Offer Conditions set out in Clause 1.2 in a manner that would not only immaterially affect certainty of the Transaction, whether or not requested by BaFin, or otherwise do not correspond to the requirements set forth in this Agreement; |
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| (iv) | in the event all Offer Conditions have been satisfied or duly waived by the Long Stop Date, but Offer Completion has not occurred due to regulatory reasons by the tenth (10th) Business Day following the Long Stop Date; or |
| (v) | the Bidder or Uber has breached any material provision of this Agreement, which such breach remains uncured (if capable of cure) for a period of ten (10) Business Days following (or, if sooner, until the date that Offer Completion would have otherwise occurred but for such breach) the provision of written notice to the Bidder or Uber, as applicable, describing such breach. |
| (c) | by the Bidder (in its own name or on behalf of Uber) in the following cases: |
| (i) | Delivery Hero has breached any material provision of this Agreement, which such breach remains uncured (if capable of cure) for a period of ten (10) Business Days following (or, if sooner, until the date that Offer Completion would have otherwise occurred but for such breach) the provision of written notice to Delivery Hero describing such breach; |
| (ii) | the Management Board or the Supervisory Board do not support the Offer in their Reasoned Statement in accordance with Clause 2.5 or the Company, the Management Board or the Supervisory Board undertake Negative Offer Effects or materially breach Clauses 2.5 or 2.6; or |
| (iii) | any of the Offer Conditions would have failed if it had been applied during the period from the Bidder’s announcement of its intention to launch the Offer pursuant to Clause 1.1(a) until the publication of the Offer Document; |
| 13.2 | Notice of any termination must be given in writing and, except for termination pursuant to Clauses 13.1(a) or 13.1(b)(i), must be made within ten (10) Business Days after the terminating Party having obtained actual knowledge (positive Kenntnis) of the event triggering a termination right. In the event of termination of this Agreement, this Agreement shall have no further effect save for Clauses 10.4, 10.5, 13 and 14 as well as other provisions the surviving of which is expressly agreed on in this Agreement (and which shall remain in full force and effect) but without prejudice to the accrued rights of each Party upon termination. The termination shall not affect the right of any Party to claim damages pursuant to applicable laws due to a breach by the other Party of its obligations under this Agreement, whether such breach occurs prior to or following such termination. |
| 13.3 | In the event that this Agreement is terminated |
| (a) | by either Delivery Hero or the Bidder pursuant to Clause 13.1(a)(ii) (or pursuant to Clause 13.1(a)(i) in circumstances where the Bidder would have been entitled to terminate pursuant to Clause 13.1(a)(ii)); or |
| (b) | by the Bidder pursuant to Clause 13.1(c)(ii) (or pursuant to Clause 13.1(a)(i) in circumstances where the Bidder would have been entitled to terminate pursuant to Clause 13.1(c)(ii)); |
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then Delivery Hero shall promptly (and in any event within five (5) Business Days) following such termination pay, or cause to be paid, to Uber the Company Termination Fee (Vertragsstrafe) by wire transfer of same day funds to the account designated by Uber. The Company Termination Fee shall amount to EUR 200,000,000.
| 13.4 | In the event that this Agreement is terminated |
| (a) | by either Delivery Hero or the Bidder pursuant to Clause 13.1(a)(i) and, as of the time of such termination, (i) at least one of the Offer Conditions set forth in Clauses 1.2(b) through 1.2(e) shall not have been satisfied, (ii) all other Offer Conditions (other than any Offer Conditions described in the foregoing clause (i)) have been satisfied or waived, and (iii) the Company has not fraudulently or willfully breached, in any material respect, any of its covenants or agreements under Clause 4 of this Agreement relating to the Offer Conditions described in clause (i); or |
| (b) | by Delivery Hero pursuant to Clause 13.1(b)(iv); |
then Uber shall promptly (and in any event within five (5) Business Days) following such termination pay, or cause to be paid, to Delivery Hero the Regulatory Reverse Fee (Vertragsstrafe) by wire transfer of same day funds to the account designated by Delivery Hero. The Regulatory Reverse Fee shall amount to EUR 700,000,000.
| 13.5 | The right to terminate this Agreement for good cause (aus wichtigem Grund) shall remain unaffected. Good cause shall exist where the terminating Party, taking into account all circumstances of the specific case and weighing the interests of the Parties, cannot reasonably be expected (unzumutbar) to continue the contractual relationship through the remainder of the agreed fixed term (Section 314 para. 1 sentence 1 BGB). |
| 14. | Miscellaneous |
| 14.1 | Assignment |
Any rights under this Agreement may only be assigned with the prior written consent of the other Parties provided that each of the Acquirors shall have the right to assign this Agreement to its Affiliates so long as Uber (i) does not delegate, and remains ultimately responsible for, its obligations specified in Clause 1.5 and (ii) shall remain jointly and severally liable with any such Affiliate assignee for the performance of all obligations of the Acquirors under this Agreement.
| 14.2 | No Third Party Rights |
For the avoidance of doubt, save as expressly otherwise set out herein, this Agreement shall only grant rights to the Parties and shall not constitute a contract for the benefit of third parties (Vertrag zu Gunsten Dritter) or a contract with protective effect for third parties (Vertrag mit Schutzwirkung für Dritte).
| 14.3 | Costs |
Each Party shall bear its own fees and expenses with regard to the Transaction and the conclusion of this Agreement (including costs of their respective advisors).
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| 14.4 | Notices |
Any and all notices and communications under this Agreement shall be made in writing in the English language and delivered by hand, by courier, or by email to the person at the address set forth below, or such other person or address as may be designated by the respective Party to the other Parties in the same manner:
| (a) | if to the Bidder: |
Uber International Technologies II Corporation
c/o Uber Technologies, Inc.
Attn.: M&A Legal
1725 3rd Street
San Francisco, CA 94158
USA
Email: [***]
with a copy (which shall not constitute notice) to:
Freshfields PartG mbB
Attn.: Rick van Aerssen and Dr. Sabrina Kulenkamp
Große Gallusstraße 14
60315 Frankfurt am Main
Germany
Email: [***];
[***]
and another copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
Attn: Andrew J. Nussbaum and Ahsan M. Barkatullah
51 West 52 Street
New York, NY 10019
USA
Email: [***];
[***]
| (b) | if to Uber |
Uber Technologies, Inc.
Attn.: M&A Legal
1725 3rd Street
San Francisco, CA 94158
USA
Email: [***]
with a copy (which shall not constitute notice) to:
Freshfields PartG mbB
Attn.: Rick van Aerssen and Dr Sabrina Kulenkamp
Große Gallusstraße 14
60315 Frankfurt am Main
Germany
Email: [***];
[***]
| - 28 - |
And another copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
Attn: Andrew J. Nussbaum and Ahsan M. Barkatullah
51 West 52 Street
New York, NY 10019
USA
Email: [***];
[***]
| (c) | if to the Company: |
Delivery Hero SE
Attn.: Niklas Östberg and Andreas Krause
Oranienburger Straße 70
10117 Berlin
Germany
Email: [***];
[***]
with a copy (which shall not constitute notice) to:
Sullivan & Cromwell LLP
Attn.: Dr Carsten Berrar, Dr Florian Späth and Dr Lars Rüve
Neue Mainzer Straße 52
60311 Frankfurt am Main
Germany
Email: [***];
[***]
[***]
The above contact details shall be deemed valid for service until any changes thereto are notified in writing to the respective other Parties.
| 14.5 | Service of Process |
Clause 14.4 (Notices) shall not apply in relation to the service of any claim form, notice, order, judgment or other document relating to or in connection with any legal proceedings, suit or action (including arbitration) arising out of or in connection with this Agreement. The Acquirors hereby appoint the lawyers admitted in Germany of the law firm of Freshfields PartG mbB as their agent for service of process for all legal proceedings arising out of or in connection with this Agreement. Any appointments shall only terminate upon the appointment of another agent for service of process domiciled in Germany, provided that the agent for service of process is an attorney admitted to the bar in Germany and her/his appointment has been notified to Delivery Hero. If the appointment terminates otherwise (e.g., because the appointee ceases to exist), the Acquirors must without undue delay, but in any event no later than within ten (10) Business Days following such termination, appoint another agent for service of process who meets the requirements set out in the preceding sentence. If such appointment is not made as required, service can be effected, by posting the claim form, notice, order, judgment or other document by registered letter with acknowledgement of receipt or equivalent under the address of the respective Party stated in Clause 14.4. Service shall then be deemed to have been effected on the addressee on the tenth (10th) day following the lodging of the letter. The Parties shall promptly issue to the relevant agent a written power of attorney and shall irrevocably instruct the agent to submit such deed in connection with any service of process under or in connection with this Agreement. The Parties agree that they waive any objection to the service so effected.
| - 29 - |
| 14.6 | Acting for Own Account |
The Acquirors are launching the Offer and acquiring the Delivery Hero Shares for its own account only and not with a view to any distribution thereof in violation of applicable securities Laws.
| 14.7 | Confidentiality and Press releases |
| (a) | During the term of this Agreement and for two (2) years thereafter, no Party shall make, or permit the making of, any press release or similar public announcement with respect to this Agreement or the Transaction, and each Party shall keep confidential and not disclose to any third party this Agreement or any confidential information regarding any other Party disclosed to it in connection with this Agreement or its implementation, other than (i) disclosure on a need to know basis to professional advisors, (on Delivery Hero’s side) to the members of its supervisory board and their advisors, (on the Acquirors’ side) to sources of debt financing, to the issuer of the Financing Confirmation, to the Asset Purchaser and its Affiliates and professional advisors and to Affiliates or lenders, (ii) as expressly agreed upon with the other Parties and (iii) as may be required, in the good faith discretion of the disclosing party, in order to comply with the requirements of applicable laws, regulations, legal process, or the rules and regulations of any stock exchange upon which any securities of the relevant Party or any of its parent companies are listed, or as otherwise required by any regulatory authority. In such circumstances, any disclosure shall be no more extensive in scope and nature than the minimum standard required by the relevant laws, orders, rules or regulations and the disclosing Party shall seek (to the extent permitted and practicable and, if requested by another Party, at the sole cost and expense of such other Party) an appropriate order or other remedy to protect the confidentiality of such information from disclosure. In the event such order or other remedy is not obtained or, upon the advice of counsel, the disclosing Party is legally obligated to disclose such information, such Party may disclose such information without any liability hereunder to the extent so advised that such disclosure is required. If a person is so required to make any announcement of or to disclose any confidential information, the relevant Party shall promptly notify the other Party or Parties concerned, where practicable and lawful to do so, before the announcement is made or disclosure occurs and shall cooperate with the other Party or Parties regarding the timing and content of such announcement or disclosure or any action which the other Party or Parties may reasonably elect to take to challenge the validity of such requirement. |
| (b) | Clause 14.6(a) shall not include information that (i) is or has become known in the public domain other than through a fault of the Party obliged to hold the information confidential or of any of such Party’s Affiliates, (ii) was lawfully known to such Party or to any of such Party’s Affiliates prior to the signing of this Agreement and which is not subject to any other confidential obligation to the other Party or Parties concerned, or (iii) was independently developed by a Party or its Affiliates without use or reliance on the confidential information of the other Party. |
| - 30 - |
| (c) | Any Party may however disclose any information in connection with this Agreement on a confidential basis to its professional advisers and consultants involved in the negotiations of this Agreement and the Offer Document (including the professional advisors of the supervisory board of Delivery Hero) and the Reasoned Statement may contain a summary of this Agreement. |
| (d) | If and to the extent this Clause 14.6 and the confidentiality agreement (the Confidentiality Agreement) entered into between Uber and the Company dated May 26, 2026 overlap, this Clause 14.6 shall prevail. |
| (e) | From the Effective Date, none of the Parties shall make any further public announcements or press releases in relation to the Transaction, unless otherwise agreed between the Parties, explicitly provided for in this Agreement or required by applicable law or upon written request by a competent authority. Notwithstanding the foregoing, Uber may disclose information regarding this Agreement, the Offer and the Delivery Hero Group in meetings with its existing or prospective investors, provided that the Acquirors shall provide a copy of any presentation to be used in such an investor meeting to Delivery Hero in advance of such investor meeting. |
| 14.8 | Entire Agreement; Form |
| (a) | This Agreement (including all Annexes hereto), the Confidentiality Agreement and the Clean Team Agreement dated July 26, 2025 and its Supplemental Agreements dated April 13, 2026 and June 8, 2026, by and between Uber and the Company contain all of the Parties’ agreements and understandings with respect to the subject matter hereof. No side agreements to this Agreement, whether verbally or in writing, have been entered into between the Parties. Any and all amendments to this Agreement or waivers must be made in writing, unless stricter requirements as to their form are required by mandatory law. This shall also apply to any waiver of compliance with the provisions of this Clause 14.7. |
| (b) | This Agreement may be executed by the Parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counter-parts shall together constitute one and the same instrument. Any signature (including, without limitation, (i) any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record and (ii) any facsimile, E-pencil or .pdf signature) hereto or to any other certificate, agreement or document related to this Agreement, and any contract formation or record-keeping, in each case, through electronic means, shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law. |
| - 31 - |
| 14.9 | Governing Law, Dispute Resolution |
| (a) | This Agreement shall be governed by, and construed in accordance with, the laws of Germany (excluding conflict of laws rules). |
| (b) | All disputes arising out of or in connection with this Agreement or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Frankfurt am Main, Germany. The language of the arbitration shall be English. |
| 14.10 | Definitions |
Terms to which a German translation has been added shall be interpreted as having the meaning assigned to them by the German translation. The headings of the clauses and subclauses in this Agreement are for convenience purposes only and shall not affect the interpretation of any of the provisions hereof.
| 14.11 | Severability |
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. Instead of the invalid or unenforceable provision a suitable and equitable provision shall apply that, so far as is lawfully possible, comes as close as possible to the intent and purpose of the invalid or unenforceable provision. The same shall apply: (i) if the Parties have unintentionally failed to address a certain matter in this Agreement (Regelungslücke); in which case a suitable and equitable provision shall be deemed to have been agreed upon which comes as close as possible to what the Parties, in the light of the intent and purpose of this Agreement, would have agreed upon if they had considered the matter; or (ii) if any provision of this Agreement is invalid because of the scope of any time period or performance stipulated herein; in which case time period or performance permitted by law shall be deemed to have been agreed which comes as close as possible to the stipulated time period or performance.
[Signature(s) page follows]
| - 32 - |
Signatures
SIGNED
for and on behalf of
Uber International Technologies II Corporation
Signature: /s/ Jeffrey Lau
Name: Jeffrey Lau
Title: Secretary
[Signature Page to Business Combination Agreement]
SIGNED
for and on behalf of
UBER TECHNOLOGIES, INC.
Signature: /s/ Madhu Kannan
Name: Madhu Kannan
Title: Chief Business Officer
[Signature Page to Business Combination Agreement]
SIGNED
for and on behalf of
DELIVERY HERO SE
Signature: /s/ Niklas Östberg
Name: Niklas Östberg
CEO (Vorstandsvorsitzender)
Signature: /s/ Marie-Anne Popp
Name: Marie-Anne Popp
Board member (CFO)
[Signature Page to Business Combination Agreement]
Exhibit 10.1
Certain identified information has been excluded from this exhibit both because it (i) is not material and (ii) is the type that the issuer treats as private or confidential. Brackets with triple asterisks denote omissions.
BRIDGE CREDIT AGREEMENT
Dated as of July 16, 2026
among
UBER
TECHNOLOGIES, INC.,
as the Borrower,
MORGAN
STANLEY SENIOR FUNDING, INC.,
as Administrative Agent,
and
The Other Lenders Party Hereto
MORGAN
STANLEY SENIOR FUNDING, INC.,
BofA SECURITIES, INC. and
DEUTSCHE BANK SECURITIES INC.,
as
Joint Lead Arrangers and Joint Bookrunners
BofA
SECURITIES, INC. and
DEUTSCHE BANK SECURITIES INC.
as Syndication Agents
TABLE OF CONTENTS
i
ii
iii
SCHEDULES
| 2.01 | Commitments and Applicable Percentages |
| 10.02 | Administrative Agent’s Office; Certain Addresses for Notices |
EXHIBITS
| A | Form of Loan Notice |
| C | Form of Note |
| D | Form of Compliance Certificate |
| E-1 | Assignment and Assumption |
| E-2 | Form of Administrative Questionnaire |
| I-1 | Form of U.S. Tax Compliance Certificate – Foreign Lenders (Not Partnerships) |
| I-2 | Form of U.S. Tax Compliance Certificate – Non-U.S. Participants (Not Partnerships) |
| I-3 | Form of U.S. Tax Compliance Certificate – Non-U.S. Participants (Partnerships) |
| I-4 | Form of U.S. Tax Compliance Certificate – Foreign Lenders (Partnerships) |
iv
BRIDGE CREDIT AGREEMENT
This BRIDGE CREDIT AGREEMENT (“Agreement”) is entered into as of July 16, 2026, among UBER TECHNOLOGIES, INC., a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent.
The Borrower has requested that the Lenders provide a bridge loan credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article
I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Acquisition” means the acquisition by Bidco of the shares of Target pursuant to the Offer.
“Acquisition Consideration” means the aggregate amount of cash consideration payable in connection with the Acquisition.
“Administrative Agent” means Morgan Stanley (or any of its designated branch offices or affiliates) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent Parties” has the meaning specified in Section 10.02(c).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the lesser of (a) the then outstanding aggregate principal amount of the Indebtedness of the Borrower and its Material Subsidiaries incurred after the Effective Date and secured by Liens not permitted under Section 7.02(a) and (b) the fair market value of the assets subject to the Liens referred to in clause (a), as determined in good faith by the board of directors of the Borrower and (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Effective Date and not permitted under Section 7.01(b); provided, that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) of this definition. For the avoidance of doubt, in no event will the amount of Indebtedness (including Guarantees of such Indebtedness) be required to be included in the calculation of Aggregate Debt more than once despite the fact that more than one Person is liable with respect to such Indebtedness and despite the fact that such Indebtedness is secured by the assets of more than one Person.
1
“Agreement” means this Bridge Credit Agreement.
“Agreement Currency” has the meaning specified in Section 10.23.
“Anti-Boycott Regulations” has the meaning specified in Section 1.06(a).
“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act 2010 to the extent applicable, all other applicable anti-corruption laws of jurisdictions where the Borrower and its Subsidiaries conduct business, and the rules and regulations (if any) thereunder enforced by any governmental agency.
“Anti-Terrorism Laws” has the meaning specified in Section 5.15.
“Applicable Authority” means (a) with respect to ESTR, the applicable administrator for ESTR or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of ESTR, in each case acting in such capacity and (b) with respect to EURIBOR, the applicable administrator for EURIBOR or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of EURIBOR, in each case acting in such capacity.
“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment and Loans at such time, subject to adjustment as provided in Section 2.17 and giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:
| Applicable Rate | |||
| Pricing Level | Debt
Ratings S&P/Moody’s/Fitch |
Commitment Fee | EURIBOR
Loans and ESTR Loans |
| 1 | ≥ A+/A1/A+ | 0.05% | 0.55% |
| 2 | A/A2/A | 0.06% | 0.625% |
| 3 | A-/A3/A- | 0.07% | 0.75% |
| 4 | BBB+/Baa1/BBB+ | 0.08% | 0.875% |
| 5 | BBB/Baa2/BBB | 0.10% | 1.00% |
| 6 | ≤ BBB-/Baa3/BBB- | 0.15% | 1.25% |
The Applicable Rate set forth above for EURIBOR Loans and ESTR Loans shall be increased by an additional [****] on the (i) 90th day after the Closing Date, (ii) 180th day after the Closing Date and (iii) 270th day after the Closing Date.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s, S&P or Fitch shall change, or if one of such rating agencies shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.
2
“Applicable Time” means, with respect to any Borrowings and payments in Euros, the local time in the place of settlement for Euros as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“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.
“Arrangers” means Morgan Stanley Senior Funding, Inc., BofA Securities, Inc. and Deutsche Bank Securities Inc., each in their respective capacities as joint lead arranger and joint bookrunner.
“Asset Sale” means the sale or other disposition of assets by the Borrower or any Subsidiary outside the ordinary course of business (as determined in good faith by the Borrower), including issuances of Equity Interests by the Borrower’s Subsidiaries (excluding (A) asset sales or other dispositions (including issuances of Equity Interests by the Borrower’s Subsidiaries) between or among the Borrower and its Subsidiaries, (B) the sale, exchange or other disposition of accounts receivable in connection with the compromise, settlement or collection thereof or a receivables securitization program or other customary receivables financings with respect thereto, (C) asset sales and other dispositions of margin stock (within the meaning of Regulation U issued by the FRB), including in connection with the settlement or repurchase of exchangeable notes issued by the Borrower, (D) issuance of Equity Interests by subsidiaries formed for the purpose of financing projects, construction or the acquisition, development or improvement of real property, and (E) asset sales and other dispositions (including issuance of Equity Interests by the Borrower’s Subsidiaries), the Net Cash Proceeds of which do not exceed $1,000,000,000 in any single transaction or related series of transactions or $2,000,000,000 in the aggregate (and only any amount in excess of such threshold amounts shall constitute Net Cash Proceeds)).
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Availability End Date” means the first to occur of: (i) receipt by the Administrative Agent of written notice of termination of this Agreement from the Borrower, (ii) the consummation of all components of the Acquisition (including the repurchase, redemption or other repayment of all outstanding Convertible Notes of the Target, and all fundings under this Agreement to be made in connection therewith, whether or not funded on the Closing Date) pursuant to the Business Combination Agreement, (iii) the abandonment (upon written notification by the Borrower to the Administrative Agent) or termination (in writing in accordance with its terms) by the Borrower of the Business Combination Agreement, (iv) the date that is five Business Days after the Long Stop Date unless the Closing Date has occurred on or before such date, and (v) the date that is 20 months after the Effective Date (as defined in the Business Combination Agreement), unless the Closing Date has occurred on or before such date.
“Availability Period” means the period from and including the Effective Date to the earlier of (a) the Availability End Date and (b) the date of termination of all of the Aggregate Commitments pursuant to Section 2.06 or Section 2.05.
“BaFin” means the German Federal Supervisory Authority for Financial Services (Bundesanstalt für Finanzdienstleistungsaufsicht).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
3
“Bank Charge” means (a) any amount payable by any Lender, the Administrative Agent, or any of their Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof (including, without limitation, the United Kingdom bank levy as set out in Schedule 19 to the Finance Act 2011 and any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011 which has been enacted and which has been formally announced as proposed as at the date of this Agreement) and (b) any bank surcharge or banking corporation tax surcharge as set out in the Finance (No. 2) Act 2015 and any other surcharge or tax of a similar nature implemented in any other jurisdiction.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“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”.
“Bidco” means Uber International Technologies II Corporation, a Delaware corporation and a wholly-owned Subsidiary of the Borrower.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” means all written information and other written materials provided by the Borrower to the Administrative Agent or any Lender pursuant to or in connection with this Agreement, including materials posted to the Platform.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type, in the same currency, and, in the case of EURIBOR Loans, having the same Interest Period made by each of the Lenders on each Funding Date pursuant to Section 2.01.
“Business Combination Agreement” means the business combination agreement to be entered into between Bidco, the Borrower and the Target in connection with the Acquisition on or about the Effective Date.
“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 Administrative Agent’s Office is located (or, solely for the purpose of Section 2.01, on which commercial banks are authorized to close, or are in fact closed, in Frankfurt am Main, Germany); provided that if such day relates to any interest rate settings as to a EURIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such EURIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such EURIBOR Loan, means a Business Day that is also a TARGET Day.
“Capital Lease” means each lease that has been or is required to be, in accordance with GAAP, classified and accounted for as a capital lease or financing lease.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases (and, for the avoidance of doubt, not as an operating lease) on both the balance sheet and statements of operations of such Person under GAAP, and the amount of such obligations shall be the amount required to be reflected as a liability on a balance sheet of such Person determined in accordance with GAAP; provided that, for the avoidance of doubt, any obligations relating to a lease that was accounted for by such Person as an operating lease as of the Effective Date and any similar lease entered into after the Effective Date by such Person shall be accounted for as obligations relating to an operating lease and not as Capital Lease Obligations.
4
“Cash Confirmation Agreement” means that certain Cash Confirmation Agreement, dated as of the date hereof, between the Borrower and Morgan Stanley Europe SE.
“Certain Funds Period” means the period from and including the Effective Date and ending on the date upon which all of the Commitments have been funded or terminated in accordance with the terms hereof.
“Change in Law” means the occurrence, after the Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means: the Borrower becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or has become the “beneficial owner” (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the Voting Stock of the Borrower; provided, however, that for purposes of this clause (1) such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time, directly or indirectly; and provided, further, that a transaction will not be deemed to involve a Change of Control under this clause (1) if (a) the Borrower becomes a direct or indirect wholly owned subsidiary of another Person, and (b)(i) the direct or indirect holders of the Voting Stock of such Person immediately following that transaction are substantially the same as the holders of the Borrower’s Voting Stock immediately prior to that transaction or (ii) immediately following that transaction no “person” or “group” (other than a Person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Closing Date” means the Business Day during the Availability Period on which (a) all the conditions precedent in Section 4.02 are satisfied or waived in accordance with Section 10.01 and (b) the first Funding Date occurs.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, as to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Commitment Termination Date” has the meaning specified in Section 2.09(a).
“Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
5
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with EURIBOR or any proposed Successor Rate for Dollars or Euros, as applicable, any conforming changes to the definitions of “ESTR”, “EURIBOR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods and the day basis for calculating interest for the applicable currency) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such currency exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Adjusted EBITDA” means, for any period, Consolidated Net Income for such period plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness, plus expenses associated with the equity component of, and any mark-to-market losses with respect to, Convertible Notes, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill), (e) any extraordinary charges or losses determined in accordance with GAAP, (f) non-cash stock option and other equity-based compensation expenses and payroll tax expense related to stock option and other equity-based compensation expenses, (g) any other non-cash charges, non-cash expenses or non-cash losses of the Borrower or any of its Subsidiaries for such period, including any write-down of intangibles (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of, or a reserve for, cash charges for any future period), including, for the avoidance of doubt, non-cash foreign currency translation losses and any unrealized losses in respect of Swap Contracts (including non-cash losses related to currency remeasurement of Indebtedness); provided, however that cash payments made in such period or in any future period in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of, or a reserve for, cash charges for any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated Adjusted EBITDA in the period when such payments are made, (h) transition, integration and similar fees, charges and expenses related to acquisitions or dispositions, (i) restructuring charges or reserves including write-downs and write-offs, including any one-time costs incurred in connection with acquisitions or dispositions and costs related to the closure, consolidation and integration of facilities, information technology infrastructure and legal entities, and severance and retention bonuses; (j) the amount of cost savings and synergies projected by the Borrower in good faith to be realized as a result of an acquisition not prohibited hereunder, in each case within the four consecutive fiscal quarters following the consummation of such acquisition (or following the consummation of the squeeze-out merger in the case of an acquisition structured as a two-step transaction), calculated as though such cost savings and synergies had been realized on the first day of such period and net of the amount of actual benefits received during such period from such acquisition; provided that (i) a duly completed certificate signed by a Responsible Officer or a Financial Officer shall be delivered to the Administrative Agent certifying that such cost savings and synergies are reasonably expected and factually supportable in the good faith judgment of the Borrower and (ii) no cost savings or synergies shall be added pursuant to this clause (j) to the extent duplicative of any expenses or charges otherwise added to Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, for such period (provided that notwithstanding anything to the contrary, the amount that may be added back pursuant to clauses (h), (i), (j) and (l) may not in the aggregate for any four fiscal quarter period exceed 15% of Consolidated Adjusted EBITDA for such period (determined without giving effect to any such adjustment pursuant to such clauses (h), (i), (j) and (l))), (k) costs, expenses, settlements and charges related to, arising out of or made in connection with legal proceedings and regulatory matters (provided that the amount that may be added back pursuant to this clause (k) may not in the aggregate for any four fiscal quarter period exceed 15% of Consolidated Adjusted EBITDA for such period (determined without giving effect to any such adjustment pursuant to this clause (k))), (l) costs, fees, charges and losses in respect of discontinued operations, (m) adjustments relating to purchase price allocation accounting, and (n) fees and expenses directly related to the Transactions, the incurrence of any Indebtedness permitted hereunder, the offering of any Equity Interests by the Borrower and any acquisition or disposition transactions, minus, to the extent included in the statement of such Consolidated Net Income for such period (and without duplication), the sum of (a) interest income, (b) any extraordinary income or gains determined in accordance with GAAP, and (c) any other non-cash income (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (g) above), including for the avoidance of doubt non-cash foreign currency translation gains (including non-cash gains related to currency remeasurement of Indebtedness), mark-to-market gains in respect of Convertible Notes and unrealized gains in respect of Swap Contracts, all as determined on a consolidated basis.
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Consolidated Adjusted EBITDA shall be calculated after giving effect on a pro forma basis for the applicable Measurement Period to any asset sales or other dispositions or acquisitions, investments, mergers, consolidations and discontinued operations (as determined in accordance with GAAP) by Borrower and its Subsidiaries (1) that have occurred during such Measurement Period or at any time subsequent to the last day of such Measurement Period and on or prior to the date of the transaction in respect of which Consolidated Adjusted EBITDA is being determined and (2) that the Borrower determines in good faith are outside the ordinary course of business, in each case as if such asset sale or other disposition or acquisition, investment, merger, consolidation or disposed operation occurred on the first day of such Measurement Period. For purposes of this definition, pro forma calculations shall be made in accordance with Article 11 of Regulation S-X under the Securities Act; provided that the Borrower shall not be required to give pro forma effect to any transaction that it does not in good faith deem material. Such pro forma calculations shall be made in good faith by a Financial Officer of the Borrower.
“Consolidated Interest Expense” means the total interest expense of the Borrower and its Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” means, for any period, the net income or loss of the Borrower and its Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP.
“Consolidated Subsidiaries” means, as of any date of determination and with respect to any Person, those Subsidiaries of that Person whose financial data is, in accordance with GAAP, reflected in that Person’s consolidated financial statements.
“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the Borrower and its Subsidiaries calculated in accordance with GAAP as of the end of the most recent fiscal quarter for which financial statements are available (giving pro forma effect to any acquisition or disposition of asset or other property of the Borrower or any of its Subsidiaries that has occurred since the end of such fiscal quarter as if such acquisition or disposition had occurred on the last day of such fiscal quarter); provided that no pro forma effect shall be given to any acquisition or disposition (or series of related acquisitions or dispositions) with aggregate consideration of less than $1,000,000,000.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Convertible Notes” means debt securities or Indebtedness that are convertible into or exchangeable for any combination of Equity Interests and/or cash.
“CPRA” has the meaning specified in Section 10.07.
“Debt Issuance” means the incurrence of Indebtedness for borrowed money by the Borrower or any of its Subsidiaries (excluding (i) Indebtedness owed among the Borrower and its Subsidiaries, (ii) borrowings under the Existing Credit Agreement and any refinancing thereof in an amount not to exceed $8,000,000,000 in the aggregate, (iii) any ordinary course working capital facilities, cash management, letter of credit, factoring, surety bonds, local credit facilities or lines of credit of Foreign Subsidiaries or overdraft facilities, (iv) issuances of commercial paper and refinancings thereof, (v) purchase money indebtedness or equipment financing incurred in the ordinary course of business, (vi) issuances of Convertible Notes in an aggregate amount not to exceed $2,500,000,000, (vii) capital leases incurred in the ordinary course of business, (viii) indebtedness incurred in connection with leases, receivables securitization programs and other customary receivables financings, (ix) other Indebtedness to the extent the Net Cash Proceeds of which are utilized or to be utilized to refinance any Indebtedness for borrowed money of any of the Borrower and its Subsidiaries to the extent the issuance or incurrence of such Indebtedness occurs within 15 months of the maturity of the applicable Indebtedness being refinanced and pay any fees or other amounts in respect thereof (including any prepayment or redemption premiums and accrued interest thereon), (x) Indebtedness incurred to finance projects, construction or the acquisition, development or improvement of real property, (xi) any Qualifying Bank Facility that reduces the Commitments pursuant to Section 2.06(b)(iv) and (xii) other Indebtedness for borrowed money that, when taken together with all Equity Issuances pursuant to clause (E) of the definition thereof, do not exceed an outstanding principal amount of $4,000,000,000 in the aggregate).
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“Debt Rating” means, as of any date of determination, the rating as determined by S&P, Moody’s or Fitch (collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced, senior unsecured long-term debt; provided that if at any time there is a split in the Debt Ratings issued by the three rating agencies (with the Debt Rating for Level 1 being the highest and the Rating for Level 6 being the lowest), and (i) if only one of the rating agencies shall have in effect a Debt Rating, then such Debt Rating shall apply; (ii) if only two rating agencies shall have in effect a Debt Rating, and such Debt Ratings differ by one level, then the Level for the higher of the two Debt Ratings shall apply; (iii) if only two rating agencies shall have in effect a Debt Rating, and there is a split in Debt Ratings of such rating agencies of more than one level, then the Level that is one Level lower than the higher of the two Debt Ratings shall apply; (iv) if three rating agencies shall have in effect a Debt Rating, and any two or three of the Debt Ratings are the same, then the Level shall be determined by reference to such Debt Ratings; and (v) if three rating agencies shall have in effect a Debt Rating and each Debt Rating is in a different Level, the Level that is the middle of the three ratings shall apply. If the Borrower does not have any Rating, Pricing Level 6 shall apply.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means, when used with respect to Obligations, an interest rate equal to (i) ESTR plus (ii) the Applicable Rate, if any, applicable to ESTR Loans plus (iii) 2% per annum; provided, however, that with respect to a EURIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.17(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 unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative 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 or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) 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 Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower and each Lender promptly following such determination.
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“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, and (b) if such amount is expressed in Euros, the equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with Euros last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Bloomberg or Reuters source (or such other publicly available source for displaying exchange rates) on the date that is two (2) Business Days immediately preceding the date of determination (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion). Any determination by the Administrative Agent pursuant to clause (b) above shall be conclusive absent manifest error.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Duration Fee” has the meaning specified in Section 2.09(c).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“Electronic Copy” shall have the meaning specified in Section 10.18.
“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
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“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment 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 Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination; provided that Equity Interests shall not include any Convertible Notes.
“Equity Issuance” means the issuance of any Equity Interests by the Borrower (excluding (A) issuances pursuant to employee stock plans or other benefit or employee incentive arrangements, any non-employee director compensation plan or pursuant to the exercise or vesting of any employee or director stock options, restricted stock, warrants or other equity awards or pursuant to dividend reinvestment programs, (B) issuances to the Borrower or any of its Subsidiaries, (C) issuances as consideration for any acquisition, (D) issuances of Equity Interests upon the conversion, exchange, repurchase or other settlement of any Convertible Notes or any related warrants or other equity derivatives and (E) other issuances generating Net Cash Proceeds that, when taken together with all Debt Issuances pursuant to clause (ix) of the definition thereof, do not exceed $4,000,000,000 in the aggregate).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower 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 Pension Plan; (b) the withdrawal of the Borrower, any Significant Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower, any Significant Subsidiary or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower, any Significant Subsidiary or any ERISA Affiliate; or (i) a failure by the Borrower, any Significant Subsidiary or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower, any Significant Subsidiary or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.
“ESTR” means a rate per annum equal to the Euro Short Term Rate as administered by the European Central Bank (or any other person which takes over the administration of that rate) published by the European Central Bank (or any other person which takes over publication of that rate).
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“ESTR Loan” means a Loan that bears interest based on ESTR.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR” means, for any Interest Period, with respect to any Borrowing denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period; provided, that, if EURIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“EURIBOR Loan” means a Loan that bears interest at a rate based on the definition of “EURIBOR.”
“Euro” and “€” mean the single currency of the Participating Member States.
“Euro Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Euros, such amount and (b) if such amount is expressed in Dollars or such currency other than Euros, the equivalent of such amount in Euros determined either (i) by using the rate of exchange for the purchase of Euros with Dollars or such other currency last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Reuters source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of Euros with Dollars or such other currency, as provided by such other publicly available information service which provides that rate of exchange at such time in place of the applicable Reuters source chosen by the Administrative Agent in its reasonable discretion, consistent with then-prevailing market practice (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount as determined by the Administrative Agent using any method of determination it deems appropriate in its reasonable discretion, consistent with then-prevailing market practice) or (ii) using any method of determination mutually agreed by the Borrower and the Administrative Agent their reasonable discretion that is consistent with then-prevailing market practice.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Subsidiary” means any of (a) any captive insurance Subsidiary, (b) any Subsidiary for which the primary purpose is to finance the purchase of motor vehicles, (c) any Subsidiary of the Subsidiaries described in clauses (a) and (b) of this definition and (d) each Subsidiary substantially all of the assets of which consist of Equity Interests in one or more Subsidiaries described in clauses (a), (b) and (c) of this definition.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.06(b)) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(b), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(g), (d) any withholding Taxes imposed under FATCA and (e) any Bank Charge.
“Executive Order” has the meaning specified in Section 5.15.
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“Existing Credit Agreement” means that certain Credit Agreement, dated as of September 26, 2024, among the Borrower, Bank of America, N.A., as administrative agent and letter of credit issuer, the other letter of credit issuers party thereto, and the other lenders party thereto.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any 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.
“FCPA” means the Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.), as amended.
“Federal Funds Rate” means, for any day, 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 Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” means that certain Fee and Syndication Letter, dated as of the Effective Date, between the Borrower and each of the Administrative Agent and the Arrangers.
“Final Settlement Date” means the date on which all payments to be made by Bidco in connection with the Offer to settle acceptances during the Initial Acceptance Period pursuant to Section 16(1) of the German Takeover Code and the Subsequent Acceptance Period pursuant to Section 16(2) of the German Takeover Code have been made.
“Financial Officer” means any of the chief financial officer, principal accounting officer, vice president of finance, vice president of corporate development, treasurer or corporate controller or most senior financial officer of the Borrower.
“Fitch” means Fitch Ratings Ltd., and any successor thereto.
“Foreign Lender” means a Lender that is not a U.S. Person. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“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 activities.
“Funding Date” has the meaning specified in Section 2.01.
“Funding Fee” has the meaning specified in Section 2.09(d).
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
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“German Takeover Code” means the German Securities Acquisition and Takeover Code (Wertpapiererwerbs- und Übernahmegesetz).
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall 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 Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, per- and polyfluoroalkyl substances, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Historic ESTR” means, for any date of determination, the most recent ESTR for a day which is no more than five (5) Business Days before such date of determination.
“Indebtedness” of any specified Person means any obligation for borrowed money.
For the avoidance of doubt, Indebtedness with respect to any Person only includes indebtedness for the repayment of money provided to such Person, and does not include any other kind of indebtedness or obligation notwithstanding that such other indebtedness or obligation may be evidenced by a note, bond, debenture or other similar instrument, may be in the nature of a financing transaction, or may be an obligation that under GAAP is classified as “debt” or another type of liability, whether required to be reflected on the balance sheet of such Person or otherwise. For the further avoidance of doubt, the inclusion of specific obligations under Section 7.01(b) shall not create any implication that any such obligations constitute Indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 10.04(b).
“Information” has the meaning specified in Section 10.07.
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“Interest Payment Date” means, (a) as to any ESTR Loan, the last Business Day of each March, June, September and December and the Maturity Date and (b) as to any EURIBOR Loan, the last Business Day of the Interest Period applicable to such EURIBOR Loan and the Maturity Date; provided, however, that if any Interest Period for a EURIBOR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall be Interest Payment Dates.
“Interest Period” means as to each EURIBOR Loan, the period commencing on the date such EURIBOR Loan is disbursed or converted to or continued as a EURIBOR Loan and ending on the date one, three or six months thereafter (in each case, subject to availability), as selected by the Borrower in its Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next 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 end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
“IRS” means the United States Internal Revenue Service.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person and/or one or more of its subsidiaries.
“Judgment Currency” has the meaning specified in Section 10.23.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender” has the meaning specified in the introductory paragraph hereto.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title to real property, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan” has the meaning specified in Section 2.01.
“Loan Documents” means this Agreement, including schedules and exhibits hereto, each Note, each Assignment and Assumption, the Fee Letter and any amendments, modifications or supplements hereto or to any other Loan Document or waivers hereof or to any other Loan Document.
“Loan Notice” means a notice of (a) a Borrowing or (b) a continuation of EURIBOR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer or a Financial Officer of the Borrower.
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“Long Stop Date” has the meaning given to the term “Long-Stop Date” in the Business Combination Agreement.
“Major Event of Default” means any Event of Default under (a) Section 8.01(a) (Non-Payment), (b) Section 8.01(f) (Insolvency Proceedings, Etc.) (but solely with respect to the Borrower), (c) Section 8.01(b) (Specific Covenants), but only to the extent relating to a breach of clause (a) or (b) of Section 6.10 (The Offer and Related Matters) and (d) Section 8.01(d) (Representations and Warranties), but only to the extent relating to a breach of any Major Representation.
“Major Representations” means the representations and warranties of the Borrower contained in Section 5.01 (Organization; Powers), but solely with respect to the Borrower, Section 5.02 (Authorization; Enforceability) and Section 5.16 (Offer).
“Material Adverse Effect” means a material adverse effect on (A) the business, property, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole or (B) the rights of or remedies available to the Administrative Agent or any Lender under this Agreement (other than due to the action or inaction of the Administrative Agent or the Lenders).
“Material Subsidiary” means any Subsidiary of the Borrower (other than any Excluded Subsidiary) that generates on an individual basis more than 10% of the consolidated operating income of the Borrower and its Subsidiaries before depreciation and amortization for the eight most recently ended consecutive fiscal quarters. For the avoidance of doubt, any Subsidiary that has generated operating loss before depreciation and amortization for the eight most recently ended consecutive fiscal quarters shall not be deemed a Material Subsidiary.
“Maturity Date” means the date that is 364 days after the Closing Date; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Maximum Rate” has the meaning specified in Section 10.09.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Borrower for which financial statements have been or are required to have been filed with the SEC.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Morgan Stanley” means Morgan Stanley Senior Funding, Inc. and its successors.
“MS Group” has the meaning specified in Section 9.03(e).
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower, any Significant Subsidiary or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower, any Significant Subsidiary or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
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“Net Cash Proceeds” means:
(a) with respect to any sale or other disposition of assets outside the ordinary course of business by the Borrower or any of its Subsidiaries, the excess, if any, of (i) the cash received in connection therewith (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) payments made to retire any indebtedness that is secured by such asset and that is required to be repaid in connection with the sale thereof, (B) the fees and expenses incurred by the Borrower and its Subsidiaries in connection therewith, (C) taxes paid or reasonably estimated to be payable by the Borrower and its Subsidiaries in connection with such transaction, (D) the funded escrow established pursuant to the documents governing such dispositions to secure indemnification and purchase price adjustments; provided that any amounts released from escrow shall constitute Net Cash Proceeds; and (E) the amount of reserves established by the Borrower and its Subsidiaries in good faith and pursuant to commercially reasonable practices for adjustment in respect of the sale price of such asset or assets in accordance with GAAP; provided that if the amount of such reserves exceeds the amounts charged against such reserves, then such excess, upon the determination thereof, shall then constitute Net Cash Proceeds; provided, further, that if no Event of Default exists and the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds in assets or operations useful in the business of the Borrower and its Subsidiaries, or to acquire Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person within the Reinvestment Period, such portion of such proceeds shall not constitute Net Cash Proceeds except to the extent not, within the Reinvestment Period, so used;
(b) with respect to incurrence of Indebtedness for borrowed money by the Borrower or any of its Subsidiaries, the excess, if any, of (i) cash received by the Borrower and its Subsidiaries in connection with such incurrence, issuance, offering or placement over (ii) the sum of (A) payments made to retire any indebtedness that is required to be repaid in connection with such issuance, offering or placement (other than the Loans) and (B) the underwriting discounts and commissions and other fees and expenses incurred by the Borrower and its Subsidiaries in connection with such incurrence, issuance, offering or placement; and
(c) with respect to the issuance of any Equity Interests by the Borrower, the excess of (i) the cash received by the Borrower in connection with such issuance over (ii) the underwriting discounts and commissions and other fees and expenses incurred by the Borrower and its Subsidiaries in connection with such issuance.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower 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 the Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by the Borrower under any Loan Document and (b) the obligation of the Borrower to reimburse any amount in respect of any of the foregoing that the Administrative Agent or any Lender, in each case in its sole discretion, may elect to pay or advance on behalf of the Borrower.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offer” means the voluntary public takeover offer (freiwilliges öffentliches Übernahmeangebot) made or to be made by Bidco to the shareholders of the Target pursuant to the German Takeover Code for the acquisition of all the shares in the Target on the terms and conditions of the Business Combination Agreement.
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“Offer Document” means the offer document (Angebotsunterlage) relating to the Offer and published or to be published by Bidco pursuant to Section 14(3) of the German Takeover Code (as amended or supplemented from time to time in compliance with the terms of the Business Combination Agreement).
“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating or limited liability agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) 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 (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) 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 (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in Euros, an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“Participating Member State” means any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“PATRIOT Act” has the meaning specified in Section 10.19.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower, any Significant Subsidiary and any ERISA Affiliate or with respect to which the Borrower, any Significant Subsidiary or any ERISA Affiliate has any liability and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
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“Permitted Liens” means:
(1) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction (which term includes, for avoidance of doubt, development, creation and production) of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(2) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction (which term includes, for avoidance of doubt, development, creation and production) costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Borrower or any Material Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof, accessions thereto and insurance proceeds thereof;
(3) Liens in favor of the Borrower or a Subsidiary;
(4) Liens on any Principal Property in favor of the Governmental Authority or any foreign governmental authorities to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(5) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory, common law or contractual provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to securities accounts, deposit accounts or other funds maintained with a creditor depository institution;
(6) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings diligently conducted, if, to the extent required by GAAP, adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(7) Liens to secure the performance of bids, trade or commercial contracts (including insurance contracts), government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case, in the ordinary course of business, deposits as security for contested taxes, import or customs duties, liabilities to insurance carriers or for the payment of rent, and Liens to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing obligations or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(8) licenses and sublicenses of intellectual property of the Borrower and its Material Subsidiaries and leases and subleases of property granted to others in the ordinary course of business not in any way interfering in any material respect with the business of the Borrower and its Subsidiaries;
(9) Liens upon specific items of inventory or other goods, documents of title and proceeds of any Person securing such Person’s obligation in respect of letters of credit or banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(10) Liens on stock, partnership or other equity interests in any Joint Venture of the Borrower or any of its Material Subsidiaries or in any Material Subsidiary that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of the Borrower or any Material Subsidiary;
(11) Liens and deposits securing netting services, business credit card or purchase card programs, overdraft protection and other treasury, depository, Swap Contracts and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
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(12) Liens on, and consisting of, deposits made by the Borrower to discharge or defease this Agreement or any other Indebtedness;
(13) Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(14) easements, rights of way, covenants, restrictions, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and other similar charges and encumbrances and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of the Borrower and its Subsidiaries, taken as a whole;
(15) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods and Liens deemed to exist in connection with investments in repurchase agreements;
(16) Liens in respect of judgments that do not constitute an Event of Default under Section 8.01(h) and Liens securing appeal or surety bonds related to such judgments;
(17) Liens on the Equity Interests of Excluded Subsidiaries;
(18) the interest and title of a lessor or licensor under any lease, license, sublease or sublicense entered into by the Borrower or any Material Subsidiary in the ordinary course of its business;
(19) Uniform Commercial Code financing statements filed (or similar filings under applicable law) solely as a precautionary measure in connection with operating leases;
(20) in connection with the sale or transfer of any assets in a transaction not prohibited hereunder, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;
(21) Liens on earnest money deposits of cash or cash equivalents made in connection with any acquisition;
(22) Liens in the nature of the right of setoff in favor of counterparties to contractual agreements not otherwise prohibited hereunder with the Borrower or any of its Material Subsidiaries in the ordinary course of business;
(23) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;
(24) Liens on blocked, segregated, pledged or escrow accounts, and the cash, cash equivalents or other property held therein, pending the applications of such property to a use not prohibited by the terms of this agreement, including, without limitation, amounts held in the Blocked Account (as defined in the Cash Confirmation Agreement) pending consummation of the Acquisition and payment of the Acquisition Consideration; and
(25) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in clauses (1) through (24) above, inclusive.
For the avoidance of doubt, the inclusion of specific Liens in this definition of “Permitted Liens” shall not create any implication that the obligations secured by such Liens constitute Indebtedness.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” means an Internet or intranet website, or any other information delivery system, used by the Administrative Agent for the posting and distribution of Borrower Materials to the Lenders.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the board of directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Borrower and its Consolidated Subsidiaries taken as a whole) not to be material to the business of the Borrower and its Consolidated Subsidiaries, taken as a whole.
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“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.
“Purchase Money Indebtedness” means Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital asset to the extent incurred prior to or within 12 months following such acquisition, construction or improvement.
“Qualifying Bank Facility” shall mean a credit facility entered into by the Borrower or any Subsidiary for the purpose of financing the Transactions that is subject to conditions precedent to funding that are no less favorable to the Borrower or such Subsidiary than the conditions set forth herein to the funding of the Loans hereunder, as determined by the Borrower in its reasonable discretion.
“Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that, to the extent such market practice is not administratively feasible for the Administrative Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Administrative Agent).
“Recipient” means the Administrative Agent or any Lender, as applicable, that is the recipient of any payment to be made by or on account of any obligation of the Borrower hereunder.
“Register” has the meaning specified in Section 10.06(c).
“Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Reinvestment Period” means, with respect to any Net Cash Proceeds received in connection with any Asset Sale, the period of 9 months following the receipt of such Net Cash Proceeds; provided that, in the event that, during such 9 month period, the Borrower or any Subsidiary enters into a binding commitment to reinvest any Net Cash Proceeds, the Reinvestment Period with respect to such Net Cash Proceeds shall be the period of 12 months following the receipt of such Net Cash Proceeds.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“Removal Effective Date” has the meaning specified in Section 9.06(b).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“Request for Borrowing” means, with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice.
“Required Lenders” means, at any time, Lenders having Commitments and Loans representing more than 50% of the Aggregate Commitments and Loans of all Lenders at such time. The Commitment and Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Rescindable Amount” has the meaning as specified in Section 2.12(b)(i).
“Resignation Effective Date” has the meaning specified in Section 9.06(a).
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“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means any of the President, Chief Executive Officer, Senior Vice President and the most senior Financial Officer from time to time of the Borrower, or any person designated by the Borrower in writing to the Administrative Agent from time to time, acting singly.
“Restricted Lender” has the meaning specified in Section 1.06(b).
“Restricted Net Cash Proceeds” has the meaning specified in Section 2.05(b)(ii).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in Euros, same day or other funds as may be determined by the Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in Euros.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, the United Kingdom, the Hong Kong Monetary Authority or other relevant sanctions authority.
“Sanctioned Country” means, at any time, (a) a country, region or territory which is the subject or target of comprehensive Sanctions (including, as of the Effective Date, Cuba, Iran, North Korea, the Crimea Region of Ukraine, the non-government controlled areas of the Kherson and Zaporizhzhia Regions of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic), (b) an agency of the government of a country, region or territory described in clause (a), or (c) an organization directly or indirectly controlled by a country, region or territory described in clause (a) or its government.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, by the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, the United Kingdom, the Hong Kong Monetary Authority or other relevant sanctions authority, (b) any Person located, organized or resident in a country, region or territory which is the subject or target of comprehensive Sanctions, (c) any Person owned 50% or more or controlled by any such Person or Persons described in the foregoing clauses (a) and (b), or (d) any Person otherwise the subject or target of any Sanctions.
“Sanctions Provisions” has the meaning specified in Section 1.06(a).
“Scheduled Unavailability Date” has the meaning specified in Section 3.03(c)(ii).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Significant Subsidiary” means any Subsidiary that is a “significant subsidiary” of the Borrower as defined under clauses (1) or (2) of Rule 1-02(w) of Regulation S-X under the Securities Exchange Act of 1934, as amended; provided that no Excluded Subsidiary shall be deemed a Significant Subsidiary.
“Solvent” means, with respect to the Borrower and its Significant Subsidiaries on a particular date, that on such date (a) the fair value of the present assets of the Borrower and its Significant Subsidiaries, taken as a whole, is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of the Borrower and its Significant Subsidiaries, taken as a whole, (b) the present fair saleable value of the assets of the Borrower and its Significant Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liability of the Borrower and its Significant Subsidiaries, taken as a whole, on their debts as they become absolute and matured, (c) the Borrower and its Significant Subsidiaries, taken as a whole, do not intend to, and do not believe that they will, incur debts or liabilities (including current obligations and contingent liabilities) beyond their ability to pay such debts and liabilities as they mature in the ordinary course of business and (d) the Borrower and its Significant Subsidiaries, taken as a whole, are not engaged in business or a transaction, and are not about to engage in business or a transaction, in relation to which their property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
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“Subsequent Acceptance Period” means the subsequent acceptance period (weitere Annahmefrist) for the Offer pursuant to Section 16(2) of the German Takeover Code.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Successor Rate” has the meaning specified in Section 3.03(c).
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. Notwithstanding the foregoing, Swap Contract shall not include any equity swaps, options or forwards to which the Borrower or any Subsidiary is party that are classified and accounted for in the Borrower’s stockholders’ equity under GAAP.
“T2” means the real time gross settlement system operated by the Eurosystem, or any successor system.
“Target” means Delivery Hero SE, a European Company (Societas Europaea) incorporated under the laws of Germany.
“TARGET Day” means any day on which T2 is open for the settlement of payments in Euro.
“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.
“Threshold Amount” means $300,000,000.
“Transactions” means (i) the execution, delivery and performance by the Borrower of each Loan Document to which it is a party, (ii) the borrowing of Loans hereunder, (iii) the consummation of the Acquisition and payment of the Acquisition Consideration, (iv) the repayment of certain Indebtedness in connection with the Acquisition and (v) the payment of fees and expenses in connection with the foregoing.
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“Type” means, with respect to a Loan, its character as an ESTR Loan or a EURIBOR Loan.
“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 subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“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 412 of the Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(g)(ii)(B)(III).
“Voting Stock” of a Person means all classes of capital stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(b) 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.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (A) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (B) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
(a) The representations and undertakings contained in Sections 5.15, 6.08 and 7.04 (together, the “Sanctions Provisions”) shall not be made or complied with by the Borrower if and solely to the extent such representations or undertakings would result in a violation of or conflict with the Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) or any similar provision enacted under or pursuant to the German Foreign Trade Act (Außenwirtschaftsgesetz) and/or any other applicable national or EU law anti-boycott laws or regulations (together, the “Anti-Boycott Regulations”).
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(b) To the extent any Lender notifies the Administrative Agent that it must comply with Anti-Boycott Regulations (each a “Restricted Lender”), the Sanctions Provisions shall only apply for the benefit of that Restricted Lender to the extent that it would not result in any violation of, conflict with or give rise to liability under any Anti-Boycott Regulations.
(c) In connection with any amendment, waiver, determination or direction relating to any part of a Sanctions Provision of which a Restricted Lender does not have the benefit pursuant to paragraph (b) above, the Loans of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Required Lenders (or any other applicable consent threshold) has been obtained or whether the determination or direction by the Required Lenders (or any other applicable consent threshold required to make the relevant determination or direction) has been made.
1.07 Interest Rates; Licensing.
(a) The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
(b) By agreeing to make Loans under this Agreement, each Lender is confirming it has all licenses, permits and approvals necessary for use of the reference rates referred to herein and it will do all things necessary to comply, preserve, renew and keep in full force and effect such licenses, permits and approvals.
Article
II.
the COMMITMENTS and Borrowings
2.01 Loans. Subject only to (x) in the case of the Borrowing on the Closing Date, the conditions set forth in Section 4.02, or (y) in the case of the subsequent Funding Date, the conditions set forth in Section 4.03, each Lender severally agrees to make up to two loans (each such loan, a “Loan”) to the Borrower in Euros as follows (i) one Borrowing on the Closing Date and (ii) an additional Borrowing on any Business Day during the Availability Period (the date of each such Borrowing (including, for the avoidance of doubt, the Closing Date), a “Funding Date”), in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s then remaining Commitment. The Commitments are not revolving in nature, and amounts borrowed under this Section 2.01 and repaid under Section 2.07 or prepaid under Section 2.05 may not be reborrowed. Loans may be EURIBOR Loans or (subject to Section 3.02 and/or 3.03) ESTR Loans, as further provided herein.
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2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing and each continuation of a EURIBOR Loan shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the requested date of any Borrowing or any continuation. Each Borrowing of or continuation of EURIBOR Loans shall be in a principal amount of €5,000,000 or a whole multiple of €1,000,000 in excess thereof. Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing or a continuation of EURIBOR Loans, (ii) the requested date of the Borrowing or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed or continued, and (iv) the duration of the Interest Period with respect thereto. If the Borrower fails to give a timely notice requesting a continuation of EURIBOR Loans, then the applicable Loans shall be continued as EURIBOR Loans in their original currency with the same Interest Period. If the Borrower requests a Borrowing of or continuation of EURIBOR Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed, in each case, to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic continuation of EURIBOR Loans described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 11:00 a.m., Central European Time on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 or Section 4.03, as applicable, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a EURIBOR Loan may be continued only on the last day of an Interest Period for such EURIBOR Loan.
(d) After giving effect to all Borrowings and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Loans.
(e) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or any portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent, and such Lender.
(f) With respect to EURIBOR, the Administrative 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
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(a) Voluntary. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to any date of prepayment of any EURIBOR Loans; and (ii) any prepayment of EURIBOR Loans shall be in a principal amount of €5,000,000 or a whole multiple of €1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding; provided further that a notice of voluntary prepayment may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Each such notice shall specify the date, amount of such prepayment and the Type(s) of Loans to be prepaid, and if EURIBOR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of any EURIBOR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.17, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
(b) Mandatory.
(i) In the event that the Borrower actually receives any Net Cash Proceeds arising from any Equity Issuance or the Borrower or any of its Subsidiaries actually receives any Net Cash Proceeds arising from any Debt Issuance or Asset Sale, in each case after the Closing Date, then the Borrower shall prepay the Loans in an amount equal to 100% of the Euro Equivalent (determined as of the date of receipt of such Net Cash Proceeds) of such Net Cash Proceeds not later than three Business Days following the receipt by the Borrower or any such Subsidiary of such Net Cash Proceeds. The Borrower shall promptly (and not later than the date of receipt thereof) notify the Administrative Agent of the receipt by the Borrower or, as applicable, any Subsidiary, of such Net Cash Proceeds from any Equity Issuance, Debt Issuance or Asset Sale, and such notice shall be accompanied by a reasonably detailed calculation of the Net Cash Proceeds. Each prepayment of Loans shall be applied ratably and shall be accompanied by accrued interest and fees on the amount prepaid to the date fixed for prepayment, plus, in the case of any EURIBOR Loan, any amounts due to the Lenders under Section 3.05. Notwithstanding the foregoing, no mandatory prepayment pursuant to this Section 2.05(b)(i) shall be required prior to the Final Settlement Date.
(ii) Notwithstanding the foregoing, mandatory repayments with respect to Net Cash Proceeds from Debt Issuances or Asset Sales received by a Foreign Subsidiary or a Subsidiary of a Foreign Subsidiary shall not be required if and for so long as the Borrower has determined in good faith in consultation with the Administrative Agent that repatriation to the Borrower of such Net Cash Proceeds would have material adverse tax consequences or would violate applicable local law or the applicable organizational documents of such Subsidiary (“Restricted Net Cash Proceeds”).
2.06 Termination or Reduction of Commitments.
(a) Voluntary. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination or reduction, and (ii) any such partial reduction shall be in an aggregate amount of €10,000,000 or any whole multiple of €1,000,000 in excess thereof (or, if less, the remaining amount of Commitments); provided that a notice of termination or reduction of the Aggregate Commitments delivered by the Borrower may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
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(b) Mandatory.
(i) Each Lender’s Commitment shall automatically be reduced by the amount of each Loan made by such Lender, such reduction to be effective immediately following the making of such Loan by such Lender.
(ii) The Commitments shall automatically terminate in full on the Availability End Date unless funded on or prior to the Availability End Date. Additionally, any remaining Aggregate Commitments outstanding on the second Funding Date will terminate in full on the second Funding Date after the funding of any Loans on such second Funding Date.
(iii) In the event that the Borrower actually receives any Net Cash Proceeds arising from any Equity Issuance or the Borrower or any of its Subsidiaries actually receives any Net Cash Proceeds (other than Restricted Net Cash Proceeds) arising from any Debt Issuance or Asset Sale, in each case after the Effective Date and such Net Cash Proceeds are received:
(A) after the Closing Date, then, subject to clause (c) below, the Aggregate Commitments shall automatically be reduced in an amount equal to 100% of the Euro Equivalent amount (determined as of the date of receipt of such Net Cash Proceeds) of such Net Cash Proceeds, effective on the date of receipt by the Borrower or any such Subsidiary of such Net Cash Proceeds; or
(B) prior to the Closing Date, then the Aggregate Commitments shall be reduced pursuant to the terms of the Cash Confirmation Agreement;
provided that, in the case of any such Net Cash Proceeds arising from one or more Equity Issuances, Debt Issuances or Asset Sales, any reduction of the Aggregate Commitments pursuant to clause (A) or clause (B) above prior to the Closing Date shall take effect only upon the crediting of such Net Cash Proceeds to a Blocked Account (as defined in the Cash Confirmation Agreement).
The Borrower shall promptly (and not later than the date of receipt thereof) notify the Administrative Agent of the receipt by the Borrower or, as applicable, any Subsidiary, of such Net Cash Proceeds from any Equity Issuance, Debt Issuance or Asset Sale, and such notice shall be accompanied by a reasonably detailed calculation of the Net Cash Proceeds. Each reduction of the Aggregate Commitments shall be applied ratably to reduce the Commitments of each Lender.
(iv) In the event that the Borrower or any Subsidiary enters into any Qualifying Bank Facility during the period commencing on the Effective Date and ending on the last day of the Availability Period, then the Commitments then outstanding shall be automatically reduced in an amount equal to 100% of the aggregate commitments under such Qualifying Bank Facility on the date of effectiveness of the definitive documentation for such Qualifying Bank Facility. The Borrower shall promptly notify the Administrative Agent in writing of the entry by the Borrower, or, as applicable, any Subsidiary, into such Qualifying Bank Facility.
(c) Commitment Reductions When Loans Are Outstanding. Any prepayment of Loans or Commitment reduction, whether voluntary or mandatory, required to be made with respect to the Commitments or Loans under this Agreement shall be allocated pro rata amongst the Lenders to reduce, first, Loans until such Loans have been reduced to €0 and second, Commitments until such Commitments have been reduced to €0.
2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Loans made to the Borrower outstanding on such date.
(a) Subject to the provisions of subsection (b) below, (i) each EURIBOR Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to EURIBOR for such Interest Period plus the Applicable Rate; and (ii) each ESTR Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to (x) ESTR on such date plus the Applicable Rate or (y) if ESTR is not available on such date, Historic ESTR plus the Applicable Rate.
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(b) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(i) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due, whether at stated maturity, by acceleration or otherwise and, in each case, such non-payment constitutes an Event of Default under Section 8.01(a), then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee in Euros equal to the Applicable Rate times the actual daily amount of the Aggregate Commitments, subject to adjustment as provided in Section 2.17. The commitment fee shall accrue commencing 120 days after the Effective Date until the termination of the Aggregate Commitments in full (such date, the “Commitment Termination Date”), and shall be due and payable in arrears on the Commitment Termination Date. If there is any change in the Applicable Rate, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period that such Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(c) Duration Fee. If Commitments are outstanding and/or the Loans have not been repaid in full in cash on or prior to:
(i) the 90th day after the Closing Date, a fully earned and non-refundable duration fee equal to [****] shall be due and payable by the Borrower on such date to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage;
(ii) the 180th day after the Closing Date, a fully earned and non-refundable duration fee equal to [****] shall be due and payable by the Borrower on such date to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage; and
(iii) the 270th day after the Closing Date, a fully earned and non-refundable duration fee equal to [****] shall be due and payable by the Borrower on such date to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage (clauses (i) through (iii), collectively, the “Duration Fee”).
(d) Funding Fee. The Borrower shall pay to the Administrative Agent a non-refundable funding fee for the account of each Lender equal to [****](the “Funding Fee”), which Funding Fee shall be earned, due and payable on the date such Loans are funded.
2.10 Computation of Interest and Fees. All computations of fees and interest, including those with respect to EURIBOR Loans and ESTR Loans, shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
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(a) The Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 10.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Euros, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans denominated in Euros shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Euros and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euros, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Euro payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after (i) 2:00 p.m., in the case of payments in Dollars, or (ii) the Applicable Time specified by the Administrative Agent, in the case of payments in Euros, shall, in each case, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of EURIBOR Loans that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the applicable Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, an interest rate determined in accordance with market practice. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(i) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.
With respect to any payment that the Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) 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 or to make its payment under Section 10.04(c).
(e) Funding Source. 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.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
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2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, 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 2.13 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) [reserved], or (z) 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, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.13 shall apply).
The Borrower 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 the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), 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, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, 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; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, 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 in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 or Section 4.03, as applicable, were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis, until paid in full, prior to being applied to the payment of any Loans of such Defaulting Lender. 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 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain Fees. No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) or (c) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(b) Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that 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 Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with their Applicable Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower 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’s having been a Defaulting Lender.
Article
III.
TAXES, YIELD PROTECTION AND ILLEGALITY
(a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by the applicable withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after making such deduction or withholding for Indemnified Taxes (including such deductions and withholdings for Indemnified Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Taxes been made.
(c) Payment of Other Taxes by Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by Borrower. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
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(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders; Tax Documentation.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. 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(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
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(II) executed copies of IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Laws and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(h) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Recipient, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (h), in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this clause (h) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient 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 clause (h) shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.
(i) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative 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 other Obligations.
(j) To the extent legally permissible, the Administrative Agent, in the event that the Administrative Agent is a U.S. Person, shall deliver an IRS Form W-9 to the Borrower and if the Administrative Agent is not a U.S. Person, the applicable IRS Form W-8 certifying its exemption from U.S. withholding Taxes with respect to amounts payable hereunder, on or prior to the date the Administrative Agent becomes a party to this Agreement.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to EURIBOR, or to determine or charge interest rates based upon EURIBOR or to purchase or sell, or to take deposits of, Euros in the applicable interbank market, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), any obligation of such Lender to make or maintain EURIBOR Loans shall be suspended, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay all EURIBOR Loans or (ii) convert all EURIBOR Loans to ESTR Loans immediately or on the last day of the Interest Period therefor if such Lender may lawfully continue to maintain such EURIBOR Loans to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
3.03 Inability to Determine Rates.
(a) If in connection with any request for a EURIBOR Loan or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate for EURIBOR has been determined in accordance with Section 3.03(c) and the circumstances under clause (i) of Section 3.03(c) or the Scheduled Unavailability Date has occurred with respect to EURIBOR (as applicable), or (B) adequate and reasonable means do not otherwise exist for determining EURIBOR for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed EURIBOR Loan, or (ii) the Administrative Agent or the Required Lenders determine that for any reason that EURIBOR with respect to a proposed Loan for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
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Thereafter, the obligation of the Lenders to make or maintain Loans in Euros shall be suspended in each case to the extent of the affected EURIBOR Loans or Interest Period or determination date(s), as applicable, until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice.
Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of or continuation of EURIBOR Loans to the extent of the affected EURIBOR Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of ESTR Loans and (ii) any outstanding affected EURIBOR Loans, at the Borrower’s election, shall either (1) be converted into a Borrowing of ESTR Loans in the amount of such outstanding EURIBOR Loan at the end of the applicable Interest Period or (2) be prepaid in full at the end of the applicable Interest Period; provided that if no election is made by the Borrower by the last day of the current Interest Period for the applicable EURIBOR Loan, the Borrower shall be deemed to have elected clause (1) above.
(b) [Reserved].
(c) Replacement of EURIBOR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining EURIBOR because none of the tenors of such EURIBOR under this Agreement is available or published on a current basis, and such circumstances are unlikely to be temporary; or
(ii) the Applicable Authority has made a public statement identifying a specific date after which all tenors of EURIBOR under this Agreement shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of syndicated loans denominated in Euros, or shall or will otherwise cease, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide such representative tenor(s) of EURIBOR (the latest date on which all tenors of EURIBOR under this Agreement are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”);
or if the events or circumstances of the type described in Section 3.03(c)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing EURIBOR or any then current Successor Rate in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in Euros for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in Euros for such benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
(d) Successor Rate. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
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In connection with the implementation of a Successor Rate the Administrative 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any applicable interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement, or EURIBOR Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in clauses (a) or (b) of this Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
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3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than an ESTR Loan on a day other than the last day of any Interest Period, relevant interest payment date or payment period, as applicable, for such Loan, if applicable (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than an ESTR Loan on the date or in the amount notified by the Borrower;
(c) any assignment of a EURIBOR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13; or
(d) any failure by the Borrower to make any payment of any Loan (or interest due thereon) denominated in Euros on its scheduled due date or any payment thereof in a different currency;
including any loss of anticipated profits, any foreign exchange loss and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each EURIBOR Loan made by it at EURIBOR for such Loan by a matching deposit or other borrowing in the offshore interbank eurodollar market for such currency for a comparable amount and for a comparable period, whether or not such EURIBOR Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. Each Lender may make any Borrowing to the Borrower through any Lending Office, provided that the exercise of this option shall not affect the obligation of the Borrower to repay the Borrowing in accordance with the terms of this Agreement. If any Lender requests compensation under Section 3.04, or the Borrower is 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, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is 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 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 10.13.
3.07 Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
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Article
IV.
CONDITIONS PRECEDENT TO EFFECTIVENESS AND Borrowings
4.01 Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Delaware and California;
(v) a favorable opinion of Cooley LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; and
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) the representations and warranties of the Borrower contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation or warranty that is qualified by materiality, in all respects) on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation or warranty that is qualified by materiality, in all respects) as of such earlier date, (B) no Default shall exist, (C) that there has been no event or circumstance since December 31, 2025 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (D) the Debt Ratings as of the Effective Date as reported by each of Moody’s, S&P and Fitch.
(b) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Effective Date and (ii) at least five (5) days prior to the Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification.
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(c) All fees required by the Loan Documents to be paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letter) by the Borrower, and all invoiced expenses required to be paid by the Borrower, to the Administrative Agent, the Arrangers or any Lender prior to the Effective Date shall have been paid, to the extent that such invoices have been presented to the Borrower at least three (3) Business Days prior to the Effective Date.
(d) To the extent filed with BaFin on or prior to the Effective Date, the terms of the Offer Documents shall be consistent with the description of the Offer in the Business Combination Agreement (except to the extent any inconsistencies therewith are not materially adverse to the interests of the Arrangers or the Lenders), unless the Arrangers shall have consented to such inconsistency (such consent not to be unreasonably withheld or delayed).
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement 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 satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
4.02 Conditions to Initial Borrowing on the Closing Date. The obligation of each Lender to honor any Request for Borrowing on the Closing Date is subject only to the satisfaction of the following conditions precedent on or before the Availability End Date:
(a) The Major Representations shall be true and correct as of the Closing Date and no Major Event of Default shall be continuing or shall occur as a result of the Transactions on the Closing Date.
(b) The Subsequent Acceptance Period shall have expired.
(c) The Administrative Agent shall have received a Request for Borrowing in accordance with the requirements hereof.
(d) No amendment, modification, or waiver of any term of the Business Combination Agreement or any condition to the Borrower’s obligation to consummate the Acquisition thereunder or consent granted thereunder shall have been made or granted by the Borrower without the prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to the interest of the Arrangers or the Lenders, taken as a whole; it being understood that (i) any increase in the Offer Price (as defined in the Business Combination Agreement on the date hereof) (other than an increase composed entirely of Equity Interests of the Borrower delivered as consideration to the shareholders of the Target) or (ii) any reduction in the minimum acceptance threshold below a number of Delivery Hero Shares (as defined in the Business Combination Agreement on the date hereof) that, together with any Delivery Hero Shares held by, or attributed to, Bidco or persons acting jointly with Bidco, equals at least 50% plus one (1) of the Delivery Hero Shares issued and outstanding as of the expiration of the Acceptance Period (as defined in the Business Combination Agreement on the date hereof), in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld, conditioned or delayed; provided that no such consent shall be required for any amendment to the Business Combination Agreement that is requested by BaFin).
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(e) The terms of the Offer Documents shall be consistent in all material respects with the description of the Offer in the Business Combination Agreement (except to the extent any inconsistencies therewith are (i) not materially adverse to the interests of the Arrangers or the Lenders, taken as a whole, or (ii) are required or requested by BaFin or any other competent regulatory authority having jurisdiction over the Acquisition pursuant to applicable law), unless the Arrangers shall have consented to such inconsistency (such consent not to be unreasonably withheld, conditioned or delayed). In the event of an inconsistency pursuant to clause (ii) above, the Borrower shall promptly provide (A) a copy of the relevant regulatory request or order giving rise to such inconsistency and (B) a written summary of the rationale underlying such request or order, in each case to the extent permitted by applicable law and regulation.
(f) The Administrative Agent shall have received (i) a copy of the fully executed Business Combination Agreement and (ii) a copy of the final Offer Document as approved by BaFin and published pursuant to Section 14(3) of the German Takeover Code.
(g) All fees required by the Loan Documents to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letter) by the Borrower, and all invoiced expenses required to be paid by the Borrower, to the Administrative Agent, the Arrangers or any Lender prior to the Closing Date shall have been paid, to the extent that such invoices have been presented to the Borrower at least three (3) Business Days prior to the Closing Date.
(h) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming satisfaction of the conditions in clauses (a), (b) and (d) of this Section 4.02.
4.03 Conditions to Borrowing after the Closing Date. The obligation of each Lender to make Loans on the Funding Date after the Closing Date pursuant to Section 2.01 is subject to the satisfaction of the following conditions precedent:
(a) The Major Representations shall be true and correct as of the Closing Date, no Major Event of Default shall be continuing or shall occur as a result of the Transactions on the applicable Funding Date and there shall not have been an Event of Default as a result of the breach of Section 6.09 (Use of Proceeds).
(b) The Administrative Agent shall have received a Request for Borrowing in accordance with the requirements hereof.
(c) All fees required by the Loan Documents to be paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letter) by the Borrower, and all invoiced expenses required to be paid by the Borrower, to the Administrative Agent, the Arrangers or any Lender prior to the Funding Date shall have been paid, to the extent that such invoices have been presented to the Borrower at least three (3) Business Days prior to the Funding Date.
(d) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Funding Date, satisfaction of the condition in clauses (a) of this Section 4.03.
4.04 Certain Funds Period. During the Certain Funds Period (notwithstanding any provision of this Agreement to the contrary), unless a Major Event of Default has occurred and is continuing, none of the Lenders or the Administrative Agent shall be entitled to, without the consent of the Borrower:
(a) refuse to make any Loan as provided in Section 2.01 if the conditions set forth in Section 4.02 are satisfied;
(b) terminate any Commitment where to do so would prevent or limit the making of a Loan (except as otherwise expressly contemplated in Article II);
(c) rescind, terminate or cancel this Agreement or the credit facilities provided for herein where to do so would prevent or limit the making of a Loan; or
(d) exercise any right of setoff or counterclaim in respect of any Loan where to do so would prevent or limit the making of a Loan;
provided that immediately upon the expiry of the Certain Funds Period, all such rights, remedies and entitlements shall be available to the Lenders and the Administrative Agent notwithstanding that they may not have been used or available for use during the Certain Funds Period.
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Article
V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders on the date hereof and as of each Funding Date (including, for the avoidance of doubt, the Closing Date) (it being understood that the accuracy of the representations are not a condition precedent to any Borrowing except as set forth in Article IV) that:
5.01 Organization; Powers. Each of the Borrower and its Significant Subsidiaries is duly organized and validly existing. Each of the Borrower and its Significant Subsidiaries (i) is, to the extent the concept is applicable in such jurisdiction, in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to carry on its business as now conducted and (iii) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except, in the case of clauses (i) (other than with respect to the Borrower) and (iii), where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. None of the Borrower and its Significant Subsidiaries is an EEA Financial Institution.
5.02 Authorization; Enforceability. The Transactions are within the Borrower’s corporate or other organizational powers and have been duly authorized by all necessary corporate or other organizational and, if required, equity holder action. The Borrower has duly executed and delivered each of the Loan Documents to which it is party, and each of such Loan Documents constitute its legal, valid and binding obligations, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
5.03 Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect and (ii) those approvals, consents, registrations, filings or other actions, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect, (b) except as could not reasonably be expected to have a Material Adverse Effect, will not violate any Applicable Law or regulation or any order of any Governmental Authority, (c) will not violate any charter, by-laws or other organizational document of the Borrower or any of its Significant Subsidiaries and (d) except as could not reasonably be expected to have a Material Adverse Effect, will not violate or result in a default under any indenture, agreement or other instrument (other than the agreements and instruments referred to in clause (c)) binding upon the Borrower or any of its Significant Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Significant Subsidiaries.
5.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Administrative Agent its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal years ended December 31, 2025, December 31, 2024 and December 31, 2023 in each case, audited by PricewaterhouseCoopers LLP, independent public accountants and (ii) as of and for the fiscal quarter ended March 31, 2026. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end adjustments in the case of the unaudited financial statements referred to in clause (ii) above and the absence of footnotes in the case of the unaudited and draft financial statements referred to in clauses (i) and (ii) above.
(b) Since December 31, 2025, no event, development or circumstance exists or has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
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5.06 Litigation Matters. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of its Significant Subsidiaries (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this Agreement, any other Loan Document or the Transactions.
5.07 Compliance with Laws and Agreements. Each of the Borrower and its Significant Subsidiaries is in compliance with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.08 Investment Company Status. None of the Borrower or any Significant Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.09 Margin Stock. None of the Borrower or any Significant Subsidiary is engaged in the business of purchasing or carrying, or extending credit for the purpose of purchasing or carrying, margin stock (within the meaning of Regulation U issued by the FRB), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock, in each case, in violation of Regulation U or Regulation X issued by the FRB and all official rulings and interpretations thereunder or thereof.
5.10 Taxes. Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and its Significant Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed with respect to income, properties or operations of the Borrower and its Significant Subsidiaries, (ii) such returns accurately reflect in all material respects all liability for Taxes of the Borrower and its Subsidiaries as a whole for the periods covered thereby and (iii) each of the Borrower and its Significant Subsidiaries has paid or caused to be paid all Taxes required to have been paid by it, except Taxes that are being contested in good faith by appropriate proceedings diligently conducted and, to the extent required by GAAP, for which the Borrower or such Significant Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP.
(a) Each Plan is in compliance in form and operation with its terms and with ERISA and the Code (including without limitation the Code provisions compliance with which is necessary for any intended favorable tax treatment) and all other Applicable Laws and regulations, except where any failure to comply could not reasonably be expected to result in a Material Adverse Effect. Each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code covering all applicable tax law changes or is comprised of a master or prototype plan that has received a favorable opinion letter from the IRS, and, nothing has occurred since the date of such determination that would adversely affect such determination (or, in the case of a Plan with no determination, nothing has occurred that would materially adversely affect the issuance of a favorable determination letter or otherwise materially adversely affect such qualification). No ERISA Event has occurred, or is reasonably expected to occur, other than as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(b) There exists no Unfunded Pension Liability with respect to any Plan, except as could not reasonably be expected to result in a Material Adverse Effect.
(c) None of the Borrower, any Significant Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the five calendar years immediately preceding the date this representation is given or deemed given, made or accrued an obligation to make contributions to any Multiemployer Plan.
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(d) There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of the Borrower, any Significant Subsidiary or any ERISA Affiliate, threatened, which would reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to result in a Material Adverse Effect.
(e) The Borrower, its Significant Subsidiaries and its ERISA Affiliates have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed thereby, the terms of such Plan or Multiemployer Plan, respectively, or any contract or agreement requiring contributions to a Plan or Multiemployer Plan except where any failure to comply, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(f) No Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or received an extension of any amortization period, within the meaning of Section 412 of the Code or Section 302 or 304 of ERISA. The Borrower, any Significant Subsidiary, and any ERISA Affiliate have not ceased operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it made contributions. None of the Borrower, any Significant Subsidiary or any ERISA Affiliate have incurred or reasonably expect to incur any liability to PBGC except as could not reasonably be expected to result in material liability, except for any liability for premiums due in the ordinary course or other liability which could not reasonably be expected to result in material liability, and no lien imposed under the Code or ERISA on the assets of the Borrower or any Significant Subsidiary or any ERISA Affiliate exists or, to the knowledge of the Borrower, is likely to arise on account of any Plan. None of the Borrower, any Significant Subsidiary or any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(g) Each non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all Applicable Laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities, except as could not reasonably be expected to result in a Material Adverse Effect. All contributions required to be made with respect to a non-U.S. Plan have been timely made, except as could not reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Significant Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any non-U.S. Plan, except as could not reasonably be expected to result in a Material Adverse Effect. The present value of the accrued benefit liabilities (whether or not vested) under each non-U.S. Plan, determined as of the end of the Borrower’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such non-U.S. Plan allocable to such benefit liabilities, except as could not reasonably be expected to result in a Material Adverse Effect.
(h) The Borrower represents and warrants as of the Effective Date that the assets of the Borrower involved in the transactions contemplated by this Agreement do not constitute “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans.
5.12 Disclosure. As of the Effective Date, all written information and data provided in formal presentations or in any meeting with Lenders (other than any projected financial information and other forward-looking information and other than information of a general economic or industry specific nature) furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder, (with respect to information relating to the Target prior to the Closing Date, to the Borrower’s knowledge), as modified or supplemented by other information so furnished and when taken as a whole, together with the information in the Borrower’s public filings with the SEC and the Target’s filings with the Company Register (Unternehmensregister) and the Federal Gazette (Bundesanzeiger) made prior to the Effective Date, does not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading; provided that, with respect to any projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time furnished (it being understood that such projected financial information is subject to significant uncertainties and contingencies, any of which are beyond the Borrower’s control, that no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projected financial information may differ significantly from the projected results and such differences may be material).
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5.14 Solvency. As of the Closing Date, the Borrower and the Significant Subsidiaries, taken as a whole, are, and after giving effect to the incurrence of any Indebtedness and obligations being incurred in connection herewith will be, Solvent.
(a) To the extent applicable, neither the Borrower nor any of its Subsidiaries is in violation of any legal requirement relating to U.S. economic sanctions or any laws with respect to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “Executive Order”), the PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act to the extent applicable and the laws administered by the United States Treasury Department’s Office of Foreign Assets Control (each as from time to time in effect) (collectively, “Anti-Terrorism Laws”).
(b) None of (w) the Borrower, any of its Subsidiaries, or any of the Borrower’s directors or officers, or (x) to the knowledge of the Borrower, any of the directors or officers of any of the Borrower’s Subsidiaries, or (y) to the knowledge of the Borrower, any of the employees of the Borrower or its Subsidiaries, or (z) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is any of the following:
(i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(iii) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or
(v) a Sanctioned Country or a Sanctioned Person.
(c) Neither the Borrower nor any of its Subsidiaries (i) conducts any business with, or engages in making or receiving any contribution of funds, goods or services to or for the benefit of, a Person described in Section 5.15(b)(i)-(v) above, except as permitted under U.S. law, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any applicable Anti-Terrorism Law. Neither the Borrower nor its Subsidiaries nor (x) any of the Borrower’s directors or officers or (y) to the Borrower’s knowledge, any of the directors or officers of any of the Borrower’s Subsidiaries or any Affiliate, employee, agent or representative of the Borrower or any of its Subsidiaries has with respect to the business of the Borrower or its Subsidiaries taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given, or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage, in each case in violation in any material respect of any applicable Anti-Corruption Law.
(d) The Borrower will not use, and will not permit any of its Subsidiaries to use, the proceeds of the Loans or otherwise make available such proceeds to any Person described in Section 5.15(b)(i)-(v) above, for the purpose of financing the activities of any Person described in Section 5.15(b)(i)-(v) above or in any other manner that would violate any Anti-Terrorism Laws or applicable Sanctions.
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(e) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Terrorism Laws, applicable Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and the officers and directors of the Borrower and, to the knowledge of the Borrower, each of the officers and directors of any of the Borrower’s Subsidiaries and each of the employees and agents of the Borrower and its Subsidiaries, are in compliance with applicable Anti-Terrorism Laws, applicable Anti-Corruption Laws and applicable Sanctions with respect to the business of the Borrower or its Subsidiaries.
(f) No action, suit or proceeding is pending or, to the knowledge of the Borrower, threatened in writing, by or before any court or governmental or regulatory authorities or any arbitrator against the Borrower or any of its Subsidiaries for its or their violation in any material respect of applicable Anti-Corruption Laws or applicable Anti-Terrorism Laws.
5.16 Offer. The Offer Document (a) contains all of the terms of the Offer and (b) complies in all material respects with the requirements of the German Takeover Code.
5.17 Beneficial Ownership Certification. As of the Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all material respects.
Article
VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower covenants and agrees with the Lenders that:
6.01 Financial Statements; Ratings Change and Other Information. The Borrower will furnish to the Administrative Agent (for distribution to each Lender):
(a) commencing with the fiscal year ending December 31, 2026, within 90 days after each fiscal year end of the Borrower, its audited consolidated balance sheet and related statements of operations, 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, all reported on by PricewaterhouseCoopers LLP, or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception (other than a qualification related to the maturity of the Commitments and the Loans at the Maturity Date) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) commencing with the fiscal quarter ended June 30, 2026, within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations, 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 one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a compliance certificate of a Financial Officer of the Borrower in substantially the form of Exhibit D attached hereto (i) certifying as to whether a Default has occurred and is continuing as of the date thereof and, if a Default has occurred and is continuing as of the date thereof, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.05 as of the last day of the applicable fiscal quarter or fiscal year for which such financial statements are being delivered and (iii) if and to the extent that any change in GAAP that has occurred since the date of the audited financial statements referred to in Section 5.04 had an impact on such financial statements, specifying the effect of such change on the financial statements accompanying such certificate;
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(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Significant Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, as the case may be, in each case that is not otherwise required to be delivered to the Administrative Agent pursuant hereto; provided that such information shall be deemed to have been delivered on the date on which such information has been posted on the Borrower’s website on the Internet on any investor relations page at http://www.uber.com (or any successor page) or at http://www.sec.gov;
(e) promptly after any of Moody’s, S&P or Fitch shall have announced a change in the Debt Rating, written notice of such rating change; and
(f) promptly following any request in writing (including any electronic message) therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Significant Subsidiary, or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.
Information required to be delivered pursuant to Section 6.01(a), Section 6.01(b) or Section 6.01(d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such information, or provides a link thereto on the Borrower’s website on the Internet on any investor relations page at http://www.uber.com (or any successor page) or at http://www.sec.gov; or (ii) on which such information is posted on the Borrower’s behalf on an Internet or intranet website, if any, to which the Lenders and the Administrative Agent have been granted access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
6.02 Notices of Default. Promptly after a Responsible Officer of the Borrower obtains knowledge of the occurrence of any Default, the Borrower will furnish to the Administrative Agent (for distribution to each Lender) prompt written notice of the occurrence of such Default.
6.03 Existence; Conduct of Business. The Borrower will, and will cause each of its Material Subsidiaries to, do or cause to be done all things to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that (i) the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution not prohibited by Section 7.03, and (ii) none of the Borrower or any of its Material Subsidiaries shall be required to preserve, renew or keep in full force and effect its rights, licenses, permits, privileges or franchises where failure to do so could not reasonably be expected to result in a Material Adverse Effect.
6.04 Payment of Taxes . The Borrower will, and will cause each of its Material Subsidiaries to, pay all Tax liabilities, including all Taxes imposed upon it or each such Material Subsidiary, or its and their respective income, profits, properties or operations that, if unpaid, could reasonably be expected to result in a Material Adverse Effect, before the same shall become delinquent or in default, except where the validity or amount thereof is being contested in good faith by appropriate proceedings diligently conducted and to the extent required by GAAP, the Borrower or such Material Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP.
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6.06 Books and Records; Inspection Rights. The Borrower will, and will cause each of its Material Subsidiaries to, keep proper books of record and account in which entries full, true and correct in all material respects are made and are sufficient to prepare financial statements in accordance with GAAP. The Borrower will, and will cause each of its Material Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender (pursuant to the request made through the Administrative Agent), upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records to the extent reasonably necessary, and to discuss its affairs, finances and condition with its officers and independent accountants (provided that the Borrower or such Material Subsidiary shall be afforded the opportunity to participate in any discussions with such independent accountants), all at such reasonable times and as often as reasonably requested (but no more than once annually if no Event of Default exists). Notwithstanding anything to the contrary in this Section, none of the Borrower or any of its Material Subsidiaries shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives) is prohibited by applicable law or any third party contract legally binding on the Borrower or its Material Subsidiaries, or (iii) is subject to attorney, client or similar privilege or constitutes attorney work-product.
6.08 Compliance with Laws and Agreements. The Borrower will, and will cause each of its Material Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and use reasonable measures to enforce policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws, applicable Anti-Terrorism Laws and applicable Sanctions.
6.09 Use of Proceeds. The Borrower shall on-lend the proceeds of the Loans to Bidco and ensure Bidco will use such proceeds to finance the Transactions and any obligations of it or the Borrower in connection with the Asset Purchaser Transaction (as defined in the Business Combination Agreement). The proceeds of the Loans made (i) on the Closing Date shall only be used to fund the acquisition of the Target’s shares pursuant to the terms of the Offer and to fund the obligations of Bidco or the Borrower in connection with the Asset Purchaser Transaction (as defined in the Business Combination Agreement), the repayment of outstanding Indebtedness of the Target and the costs and expenses in connection therewith, and (ii) subsequent to the Closing Date shall only be used to fund the repurchase of the Target’s Convertible Notes and the costs and expense in connection therewith. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the FRB, including Regulations T, U and X.
6.10 The Offer and Related Matters.
(a) The Borrower shall cause Bidco to conduct the Offer in accordance with, and otherwise comply in all material respects with, the German Takeover Code and all other applicable laws and regulations relating to the Offer.
(b) The Borrower shall ensure that Bidco does not amend, modify, or waive any term of the Offer Document in any material respect without the prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to the interest of the Arrangers or the Lenders, taken as a whole), provided that no such consent shall be required for any amendment, modification or waiver requested by BaFin.
(c) The Borrower shall keep the Administrative Agent reasonably informed as to any event or circumstance which may cause the Offer to lapse and, promptly upon request, details of the current level of acceptances of the Offer of which it is aware.
6.11 Beneficial Ownership Regulations. Promptly following any request therefor, the Borrower will use commercially reasonable efforts to provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
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Article
VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower covenants and agrees with the Lenders that:
(a) The Borrower will not permit any of its Material Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for any Indebtedness (any such Indebtedness or Guarantee, “Subsidiary Debt”), without Guaranteeing the payment of the Obligations on an unsecured unsubordinated basis until such time as such Subsidiary Debt is no longer outstanding.
(b) Section 7.01(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(i) Indebtedness of or Guarantee by a Person existing at the time such Person is merged into or consolidated with any Material Subsidiary or otherwise acquired by any Material Subsidiary or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Material Subsidiary and is assumed by such Subsidiary; provided that such Indebtedness or Guarantee was not incurred in contemplation thereof and is not Guaranteed by any other Material Subsidiary (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(ii) Indebtedness of or Guarantee by a Person existing at the time such Person becomes a Material Subsidiary; provided that any such Indebtedness or Guarantee was not incurred in contemplation thereof;
(iii) Indebtedness owed to or Guarantee in favor of the Borrower or any Subsidiary;
(iv) Indebtedness or Guarantees in respect of netting services, business credit or debit card programs, purchase cards, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(v) Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that any such Indebtedness or Guarantee is extinguished within five Business Days of its incurrence;
(vi) reimbursement obligations incurred in the ordinary course of business;
(vii) advances and deposits received in the ordinary course of business;
(viii) Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, (c) under any Swap Contracts and (d) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker’s acceptances for operating purposes or to secure any Indebtedness or Guarantee or other obligations referred to in clauses (i) through (vii) or this clause (viii), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business;
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(ix) Indebtedness constituting Capital Lease Obligations, equipment leases and Purchase Money Indebtedness of the Borrower or Material Subsidiary; provided that the aggregate principal amount of Indebtedness pursuant to this clause (ix) secured by real property shall not exceed $1,000,000,000 at any time outstanding; or
(x) Indebtedness or Guarantees outstanding on the date of this Agreement and any extension, renewal, replacement, refinancing or refunding of any Indebtedness or Guarantees existing on the date of this Agreement or referred to in clauses (i), (ii) and (ix); provided that any Indebtedness or Guarantees incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Indebtedness or Guarantee referred to in this clause or clauses (i) and (ii) above and the principal amount of the Indebtedness incurred or Guaranteed to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Indebtedness or Guarantee being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus the amount of fees, expenses, commissions, discounts and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
Notwithstanding Sections 7.01(a) and (b), any Material Subsidiary may create, incur, issue or assume Subsidiary Debt that would otherwise be subject to the restrictions set forth in Section 7.01(a), without Guaranteeing the payment of the Obligations, if after giving effect thereto, the Aggregate Debt does not exceed an amount equal to the greater of (i) $7,500,000,000 and (ii) 15.0% of Consolidated Total Assets. Any Material Subsidiary also may, without Guaranteeing the payment of the Obligations, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence; provided that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded and the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus the amount of fees, expenses, commissions, discounts and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(a) The Borrower will not, and will not permit any of its Material Subsidiaries, to enter into, create, incur or assume any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Obligations shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(i) Liens existing as of the Effective Date;
(ii) Liens granted after the Effective Date created in favor of the Administrative Agent and the Lenders securing the Obligations;
(iii) Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of one of the Borrower’s Financial Officers, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise Permitted Lien which is being replaced; and
(iv) Permitted Liens.
(b) Notwithstanding Section 7.02(a), the Borrower or any Material Subsidiary may, without equally and ratably securing the Obligations, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 7.02(a) if after giving effect thereto, the Aggregate Debt does not exceed an amount equal to the greater of (i) $7,500,000,000 and (ii) 15.0% of Consolidated Total Assets. The Borrower or any Material Subsidiary also may, without equally and ratably securing the Obligations, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
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7.03 Fundamental Changes. The Borrower will not (x) merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, (y) sell, transfer, lease, or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired) to another Person or (z) liquidate or dissolve, except in each case that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, any Subsidiary or any other Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation.
7.04 Use of Proceeds. The Borrower will not request any Borrowing, and the Borrower shall not use, and shall procure that its Subsidiaries shall not use, the proceeds of any Loan (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of the FCPA or any applicable Anti-Corruption Laws, (b) in violation of any Anti-Terrorism Law, (c) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Person, or in any country or territory that, at the time of such funding, financing or facilitating, is, or whose government is, a Sanctioned Person or Sanctioned Country, in violation of Sanctions or (d) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
7.05 Financial Covenant. The Borrower will not permit the ratio, determined as of the end of each of its fiscal quarters ending after the Closing Date, of (x) Consolidated Adjusted EBITDA to (y) Consolidated Interest Expense, for any Measurement Period ended on such date, to be less than 3.00:1.00.
Article
VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an event of default (each, an “Event of Default”):
(a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid herein and in the currency required hereunder, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan, any fee due hereunder or any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.02, Section 6.03 (solely with respect to the Borrower’s existence), Section 6.09, Section 6.11 or Article VII; or
(c) Other Defaults. The Borrower or any Material Subsidiary fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender); or
(d) Representations and Warranties. Any representation or warranty made or deemed made (pursuant to the express terms herein) by or on behalf of the Borrower or any Significant Subsidiary herein, in any other Loan Document, or in any certification delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. The Borrower or any Material Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee of Indebtedness (other than Indebtedness hereunder and Indebtedness or Guarantee under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; that this clause (e) shall not apply to (w) any requirement to, or any offer to, repurchase, prepay or redeem Indebtedness of a Person acquired in an acquisition permitted hereunder, to the extent such offer is required as a result of, or in connection with, such acquisition, (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, or (y) any event or condition giving rise to any redemption, repurchase, conversion or settlement (or right to redeem, require repurchase, convert or settle) with respect to any Convertible Notes or other convertible debt instrument (including any termination of any related Swap Contracts) pursuant to its terms unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default; or
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(f) Insolvency Proceedings, Etc. The Borrower or any of its Material Subsidiaries (other than any Material Subsidiary incorporated in Germany) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or any Material Subsidiary incorporated in Germany files for any of the reasons set out in Sections 17 through 19 (inclusive) of the German Insolvenzordnung for insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or the board of directors of any such Material Subsidiary is required by law to file for insolvency or the competent court takes any of the actions set out in Section 21 of the German Insolvenzordnung or the competent court institutes insolvency proceedings against any such Material Subsidiary (Eröffnung des Insolvenzverfahrens); or
(g) Inability to Pay Debts; Attachment. The Borrower or any Significant Subsidiary admits in writing its inability or fails generally to pay its debts as they become due; or
(h) Judgments. There is entered against the Borrower or any Material Subsidiary one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not paid or covered by (a) independent third-party insurance as to which the insurer has not disputed coverage, (b) escrow funds held for the benefit of the Borrower or any Material Subsidiary as to which the applicable trustee has not disputed the availability of such funds for the Borrower or such Material Subsidiary in connection with such judgment or (c) contractual indemnification in favor of the Borrower or such Material Subsidiary from third parties that have not disputed responsibility in writing), and (i) enforcement proceedings are commenced by any creditor upon such judgment or order (other than the filing of a judgment lien), or (ii) there is a period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan which, when taken together with all other ERISA Events, has resulted or could reasonably be expected to result in a Material Adverse Effect, or (ii) the Borrower, any Significant Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect.
(j) Change of Control. (i) There occurs any Change of Control or (ii) the Borrower ceases to own, directly or indirectly, 100% of the Equity Interests of Bidco.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
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(a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligations shall be terminated;
(b) 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, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) [reserved]; and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an event described in Section 8.01(f), 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, in each case without further act of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.17, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Article
IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints Morgan Stanley to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
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9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with the Borrower or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice or consent of the Lenders with respect thereto.
(a) The Administrative Agent or the Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent or any of its Affiliates, and each of the foregoing’s respective officers, partners, directors, employees or agents:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that, the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided; provided further that, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its branches or Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it or any of its Affiliates, and each of the foregoing’s respective officers, partners, directors, employees or agents (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower or a Lender.
(c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (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 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
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(d) The Administrative Agent shall not be required to (i) qualify in any jurisdiction in which it is not presently qualified to perform its obligations as the Administrative Agent, (ii) expend or risk its own funds or provide indemnities in the performance of any of its duties hereunder or the exercise of any of its rights or powers, or (iii) otherwise incur any financial liability in the performance of its duties hereunder or the exercise of any of its rights or powers, except for such expense, indemnity or liability, if any, arising out of the Administrative Agent’s gross negligence or willful misconduct in the performance of its duties hereunder or under any other Loan Document, as determined in a final and non-appealable judgment of a court of competent jurisdiction.
(e) The parties hereto acknowledge that the Administrative Agent, together with its respective affiliated companies (collectively, the “MS Group”), is a member of a global financial services firm engaged in the securities, investment management, credit services businesses and individual wealth management businesses involving, without limitation, the provision of securities underwriting, hedging, trading, brokerage activities, foreign exchange, commodities and derivatives trading, as well as providing investment banking, financing and financial advisory services. As a result, members of the MS Group and their respective Related Parties may also at any time (i) invest on a principal basis or manage funds that invest on a principal basis, in the loans or debt or equity securities of the Borrower or any other company that may be involved in any of the transactions contemplated herein, or in any currency, commodity or instrument that may be involved in any of the transactions contemplated herein, or in any related derivative instrument, (ii) carry out ordinary course investment and wealth management or brokerage activities for the Borrower or any other company (or their respective Related Parties) that may be involved in any of the transactions contemplated herein, and (iii) perform various investment banking, commercial banking and financial advisory services for other clients and customers who may have conflicting interests with respect to the Borrower and its Related Parties. The parties hereto therefore acknowledge that (i) in the course of such activities and relationships, one or more members of the MS Group, other than the Administrative Agent performing its duties and responsibilities expressly set forth in this Agreement, may acquire information about the Borrower, its Related Parties or other entities and persons which may be the subject of any transaction contemplated hereunder, and (ii) any such member of the MS Group is acting in its respective capacity (including, without limitation, as investment manager, hedge counterparty, financial advisor, Lender or Arranger), which are separate from and independent of the function and duties of the Administrative Agent. The Lenders party hereto further acknowledge that no other member of the MS Group (or the Administrative Agent to the extent it receives any such information from another member of the MS Group) shall have any obligation to disclose (or any liability for failing to disclose) such information, or the fact that any of them are in possession of such information, to any Lender or to use such information on behalf of any of them.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), 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.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
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9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the written consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint, with the written consent of the Borrower (not to be unreasonably withheld or delayed), a successor Administrative Agent meeting the qualifications set forth above, provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, with the written consent of the Borrower (not to be unreasonably withheld or delayed), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(j) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article IX and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
9.07 Non-Reliance on the Administrative Agent, the Arrangers and the Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor the Arrangers has made any representation or warranty to it, and that no act by the Administrative Agent or the Arrangers hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or the Arrangers to any Lender as to any matter, including whether the Administrative Agent or the Arrangers have disclosed material information in their (or their Related Parties’) possession. Each Lender represents to the Administrative Agent and the Arrangers that it has, independently and without reliance upon the Administrative Agent, the Arrangers, 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 of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and its Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arrangers, 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 credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security, and each Lender agrees not to assert a claim in contravention of the foregoing, such as a claim under United States Federal or state securities Laws. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
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9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, or Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
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(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 Administrative Agent and the Arrangers and not, for the avoidance of doubt, to or for the benefit of the Borrower, 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 entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(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
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent or any Arranger, each 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 Administrative Agent and the Arrangers and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent and each Arranger 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 Administrative Agent or the Arrangers under this Agreement, any Loan Document or any documents related hereto or thereto).
9.12 Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender in Same Day Funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender promptly upon determining that any payment made to such Lender comprised, in whole or in part, a Rescindable Amount.
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10.01 Amendments, Etc. Subject to Section 3.03 and the last paragraph of this Section 10.01, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a) [reserved];
(b) 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;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;
(e) modify Section 2.13 or 8.03 or any other provision hereof in a manner that would have the effect of altering the ratable reduction of Commitments, pro rata payments or the pro rata sharing of payments otherwise required hereunder, in each case, without the written consent of each Lender directly and adversely affected thereby;
(f) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
(g) release the Borrower (from its obligations as a borrower hereunder), except in connection with a merger or consolidation permitted under Section 7.03;
and, provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any waiver, amendment, consent or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding anything to the contrary herein, this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
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Notwithstanding any provision herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows, 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 Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause (b) below, shall be effective as provided in such clause (b).
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article II by electronic communication. The Administrative Agent or the Borrower may each, in its 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 Administrative 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 acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), 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; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet except to the extent such losses, claims, damages, liabilities or expenses are found to have resulted from the gross negligence or willful misconduct of such Agent Party by a final and nonappealable judgment of a court of competent jurisdiction.
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(d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Lender agrees to cause at least one individual at or on behalf of such Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Lender or its delegate, in accordance with such Lender’s compliance procedures and Applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic notices, Loan Notices and notice of Loan prepayment) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower except to the extent resulting from the gross negligence or willful misconduct of such Person as determined by a final and nonappealable judgment of a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) [reserved], (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) [reserved] and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the reasonable and documented fees, charges and disbursements of one primary firm of counsel for the Administrative Agent or any Lender, taken as a whole (and if reasonably necessary (as determined by the Administrative Agent in consultation with the Borrower), of a single regulatory counsel and a single local counsel in each appropriate jurisdiction and, in the case of an actual or potential conflict of interest where the Administrative Agent or any Lender affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another primary firm of counsel for such affected or similarly affected person (and if reasonably necessary (as determined by such affected person in consultation with the Borrower), of a single regulatory counsel and a single local counsel in each appropriate jurisdiction))), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.04, or (B) in connection with the Loans made hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender, each Arranger and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable and documented fees, charges and disbursements of one primary firm of counsel for all such Indemnitees (and if reasonably necessary (as determined by such Indemnitees in consultation with the Borrower), of a single regulatory counsel and a single local counsel in each appropriate jurisdiction and, in the case of an actual or potential conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another primary firm of counsel for such affected or similarly affected Indemnitee (and if reasonably necessary (as determined by such affected Indemnitee in consultation with the Borrower), of a single regulatory counsel and a single local counsel in each appropriate jurisdiction))), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby (including, without limitation, the Indemnitee’s reliance on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, willful misconduct or bad faith of such Indemnitee, (y) result from a claim not involving an act or omission of the Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the Arrangers or the Administrative Agent in their capacities as such) or (z) result from a material breach by such Indemnitee or one of its controlled Affiliates of its obligations under this Agreement or any other Loan Document (as determined by a court of competent jurisdiction by final and nonappealable judgment). Without limiting the provisions of Section 3.01(c), this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clauses (a) or (b) of this Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share of the Loans of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent). The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, the Borrower shall not assert, and the Borrower hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section 10.04 shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section 10.04 and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
(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, except that neither the Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (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 to the extent provided in clause (d) of this Section 10.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative 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 assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 10.06 in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in clause (b)(i)(A) of this Section 10.06, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans 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 Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. 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 and the other Loan Documents with respect to the Loans or the Commitment assigned;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 10.06 and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed, it being understood that withholding consent to an assignment to a Person who is not capable of lending to the Borrower in Euros or is not capable of lending to the Borrower in Euros without the imposition of any Indemnified Taxes is reasonable) shall be required unless (1) after the Certain Funds Period, an Event of Default under Section 8.01(a) or (f) (but solely with respect to the Borrower in the case of Section 8.01(f)) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that after the Certain Funds Period, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within fifteen (15) Business Days after having received notice thereof; and
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
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(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons).
(vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this clause (vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section 10.06, from and after the effective date specified in each Assignment and Assumption, the 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, 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, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) 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 clause (d) of this Section 10.06.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office within the United States of America a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) 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 Borrower, the Administrative 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); 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 Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.
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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 10.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05, subject to the requirements and limitations therein, including the requirements of Section 3.01(g), to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 10.06 (it being understood that the documentation required under Section 3.01(g) shall be delivered to the Lender who sells the participation); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under clause (b) of this Section 10.06 and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) 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.
10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners) (in which case such Person will inform the Borrower promptly thereof to the extent reasonably practicable and not prohibited by law, rule or regulation), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process (in which case such Person will inform the Borrower promptly thereof to the extent reasonably practicable and not prohibited by law, rule or regulation), (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.07 and not less protective of the Information than this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 10.01, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any of the Borrower and its obligations, this Agreement or payments hereunder or (iii) to the extent required by a potential or actual counterparty, insurer or reinsurer in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 10.07, (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower that is not, to knowledge of the Administrative Agent or such Lender, subject to confidentiality obligations to the Borrower or (z) is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the terms of this Section 10.07. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
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For purposes of this Section 10.07, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information is or may be price sensitive information and that the use of such Information may be regulated or prohibited by applicable legislation including securities laws relating to insider trading (under Regulation (EU) No 596/2014 (Market Abuse Regulation) or otherwise) and each of the Administrative Agent and the Lenders undertakes not to use any Information for any unlawful purpose.
For the avoidance of doubt, nothing contained in this Section 10.07 prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any person.
The parties hereto do not anticipate any disclosure of personal information of California residents to Morgan Stanley, or any collection or processing of personal information of California residents, in connection with the Transactions and Morgan Stanley’s services contemplated under this Agreement; provided, however, to the extent any California personal information subject to the California Privacy Rights Act (“CPRA”) and its implementing regulations is disclosed by the Borrower to Morgan Stanley and is covered by the CPRA and its implementing regulations, Morgan Stanley agrees to process such personal information only for the limited and specified business purposes of facilitating the execution of the Transactions or as otherwise provided by, and in compliance with, the CPRA.
10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency but excluding deposits in (a) payroll accounts, (b) health savings accounts, worker’s compensation accounts and other employee benefits accounts and (c) withholding tax accounts) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or their respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
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10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10 Integration; Effectiveness. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
10.11 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 Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13 Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender (including for these purposes a Lender who fails to provide consent under the provisions of Section 10.01) or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
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(a) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.06(b);
(b) 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 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with Applicable Laws; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 10.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section 10.13 to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against ANY OTHER PARTY HERETO, or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than THE COURTS 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 SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION 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.
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(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION 10.14. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.15.
10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ and its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) neither the Administrative Agent, the Arrangers nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, the Arrangers, nor any Lender has any obligation to disclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
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10.18 Electronic Execution; Electronic Records; Counterparts. This Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. The Borrower and each of the Administrative Agent and each Lender agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Lenders may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Administrative Agent is not under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent has agreed to accept such Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the Borrower and/or any Lender without further verification and (b) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by such manually executed counterpart.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
The Borrower and each Lender hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) any claim against the Administrative Agent, and each Lender for any liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
10.19 USA PATRIOT Act. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the PATRIOT Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, use commercially reasonable efforts to provide all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
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10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.22 Acknowledgement 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 Lender that is an 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 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.
10.23 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 Administrative 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 Borrower in respect of any such sum due from it to the Administrative Agent or any Lender 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 or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, 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 or any Lender from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under Applicable law).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| UBER TECHNOLOGIES, INC. | ||||
| By: | /s/ Balaji Krishnamurthy | |||
| Name: | Balaji Krishnamurthy | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Credit Agreement]
| MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent | ||||
| By: | /s/ Jennifer DeFazio | |||
| Name: | Jennifer DeFazio | |||
| Title: | Authorized Signatory | |||
[Signature Page to Credit Agreement]
| MORGAN STANLEY SENIOR FUNDING, INC., as Lender | ||||
| By: | /s/ Katie Bodack | |||
| Name: | Katie Bodack | |||
| Title: | Authorized Signatory | |||
[Signature Page to Credit Agreement]
| BANK OF AMERICA, N.A., as Lender | ||||
| By: | /s/ Haley Heslip | |||
| Name: | Haley Heslip | |||
| Title: | Director | |||
[Signature Page to Credit Agreement]
| deutsche bank ag new york branch, as Lender | ||||
| By: | /s/ Jonathan Krissel | |||
| Name: | Jonathan Krissel | |||
| Title: | Managing Director | |||
| By: | /s/ Dina Zhang | |||
| Name: | Dina Zhang | |||
| Title: | Managing Director | |||
[Signature Page to Credit Agreement]
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
[***]
Exhibit 99.1
Uber Announces Acquisition Offer for Delivery Hero
| ● | Cash consideration of €41.50 per share offered to all Delivery Hero shareholders, representing an Equity Value of $14.8 billion, or $13.7 billion adjusted for Uber’s prior stake purchases |
| ● | The transaction is expected to be accretive to Non-GAAP EPS upon close; high-single-digit percentage accretion by year three |
| ● | Delivery Hero has separately agreed to sell part of its business covering 14 markets to SSW Partners |
| ● | Management Board and Supervisory Board of Delivery Hero unanimously welcome and support the Takeover Offer and intend to recommend Delivery Hero shareholders to tender into the offer, subject to their review of the Offer Document |
| ● | Prosus has irrevocably committed to tender their shares, which would bring Uber’s total economic interest to ~53% |
SAN FRANCISCO – July 16, 2026 – Uber Technologies, Inc. (NYSE: UBER) has entered into a business combination agreement with Delivery Hero, extending the world’s largest mobility and delivery platform to a total of 99 markets, with combined pro-forma Gross Bookings of $236 billion in 2025.
Under the terms of the voluntary takeover offer, Uber will offer Delivery Hero shareholders cash consideration of €41.50 per share (the “Offer Price”), representing an Equity Value1 of $14.8 billion (implied for 100% of the company), or $13.7 billion adjusted for Uber’s prior stake purchases.
Delivery Hero has entered into a separate agreement with SSW Partners, a New York-based investment firm that has led cross-border investments alongside global businesses. SSW will acquire Delivery Hero’s businesses in a total of 14 markets, particularly where Uber Eats and Delivery Hero already overlap, subject to completion of the Uber Takeover Offer and other customary conditions, for a consideration of approximately $1.6 billion. Uber will not acquire control over the businesses transferred to SSW, and SSW will independently lead the process to find strategic partners that best position those businesses for long-term success.
|
Businesses being acquired by Uber 50 markets generating $42B of Gross Bookings2 in 2025 |
Businesses being acquired by SSW Partners 14 markets generating $11B of Gross Bookings in 2025 |
| Baedal Minjok (Republic of Korea); foodora (Hungary); foodpanda (Bangladesh, Cambodia, Hong Kong, Laos, Malaysia, Myanmar, Pakistan, Philippines, Singapore); Glovo (Armenia, Bosnia and Herzegovina, Bulgaria, Cote d’Ivoire, Croatia, Georgia, Italy, Kazakhstan, Kenya, Kyrgyzstan, Montenegro, Morocco, Nigeria, Serbia, Tunisia, Uganda, Ukraine); Hungerstation (Saudi Arabia); PedidosYa (Argentina, Bolivia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela); talabat (Bahrain, Egypt, Iraq, Jordan, Kuwait, Oman, Qatar, United Arab Emirates) | foodora (Austria, Czechia, Norway, Sweden); efood (Greece); Foody (Cyprus); Glovo (Moldova, Poland, Portugal, Romania, Spain); PedidosYa (Chile, Ecuador); Yemeksepeti (Türkiye) |
1 Based on Delivery Hero’s fully diluted shares outstanding of 314 million.
2 Gross Merchandise Value (GMV) used as a proxy for Gross Bookings.
“Delivery Hero’s talented team has built an extraordinary business, with beloved local brands and leading positions across many of the world’s fastest-growing delivery markets,” said Dara Khosrowshahi, CEO of Uber. “By bringing our platforms together, we will extend affordable, reliable delivery to many millions more people in many of the world’s most dynamic economies, while creating more opportunities for merchants and couriers. Together, we’ll nearly double the number of markets where we offer both mobility and delivery services, scaling a proven platform that we believe will create significant long-term value for our customers and shareholders.”
“We are excited about this opportunity with Uber and the possibilities it offers for our employees, shareholders, and partners. Uber’s global mobility and delivery platform and our shared commitment to innovation make this the right partnership to build on Delivery Hero’s strengths in local food delivery and Quick Commerce, and to take our Everyday App strategy further for our customers,” said Niklas Östberg, CEO of Delivery Hero. “I’m grateful to our people for building this company over 15 years, and we look forward to this great next chapter together.”
“The food delivery business is highly competitive and scale dependent. It is challenging to build from a European base, yet we have achieved an enormous amount over 15 years. Joining forces with a strong partner now is the right move for Delivery Hero to best secure its future competitiveness and ability to deliver value for all our stakeholders,” said Kristin Skogen Lund, Chair of the Delivery Hero Supervisory Board. “The Supervisory Board has been closely involved and fully supports the proposed transaction and we appreciate Uber’s shared interest in preserving and building on the Delivery Hero strengths.”
“We are pleased to acquire these market-leading businesses,” said Josh Steiner and Antonio Weiss of SSW Partners. “We will support management to ensure that these businesses continue to grow, invest in their people and deliver exceptional service to their customers. In parallel, we will lead the process to find the best long-term homes for these businesses, where they will continue to thrive.”
Transaction Rationale
The combination is expected to accelerate innovation and deliver meaningful benefits for consumers, merchants, couriers, and drivers. By bringing together Uber’s global technology platform with Delivery Hero’s strong local brands, merchant relationships, and delivery capabilities, the combined businesses will be better positioned to offer consumers greater choice, enhanced value, and a more seamless Uber One membership experience across more of their daily needs. For merchants, Uber’s large, highly engaged, and growing user base is expected to create incremental demand, supported by enhanced advertising, promotional, and local commerce tools. For couriers and drivers, a denser combined network is expected to drive higher order volumes, improved utilization, and a broader range of delivery and mobility earning opportunities.
The transaction nearly doubles the number of markets where Uber will offer both mobility and delivery services, from 34 to 58 markets, substantially broadening the addressable base for Uber’s proven cross-platform strategy. In Uber’s existing markets, cross-platform engagement represents a highly efficient acquisition channel while also increasing engagement, with cross-platform users generating roughly 3x the Gross Bookings and profits compared to single-product users. Uber expects the transaction to be accretive to Non-GAAP EPS upon close and high-single-digit percentage accretive by year three.
Commitment to Delivery Hero Employees and Investments in Germany
Uber recognizes that Delivery Hero’s success is built on the talent, entrepreneurial spirit, and dedication of its people. Uber fully supports and respects the commitments Delivery Hero has made to employees and has pledged to retain Delivery Hero’s headquarters and make no changes to its workforce in Berlin until at least 2029. Additionally, Uber has committed to invest €2 billion in Germany over the next 5 years, with a focus on developing its local corporate workforce, growing its nationwide business, and launching autonomous vehicle deployments and partnerships with the German automotive industry.
Financing and Capital Allocation
Uber will fund the Takeover Offer through existing cash on its balance sheet and new debt financing. Uber has executed a committed bridge facility of approximately €14 billion. The transaction is structured to maintain Uber’s strong investment grade credit rating, with gross leverage to remain below 2x, supported by Uber’s strong free cash flow generation. Uber’s existing capital allocation framework remains unchanged, including its commitment to return excess capital to shareholders through share buybacks.
Transaction Details
The Takeover Offer will be subject to a minimum acceptance threshold of 50% plus one share of Delivery Hero’s outstanding share capital (inclusive of shares owned by Uber) and certain further conditions, including receipt of certain merger control and financial regulatory clearances, which will be set out in full in the Offer Document. Prior to the announcement of the Takeover Offer, Uber held approximately 24.77% of Delivery Hero’s issued voting share capital directly, and held additional economic exposure of approximately 11.74% through equity derivatives. Prosus has entered into an irrevocable undertaking agreement to tender all of their Delivery Hero shares (~17% of shares outstanding) into the offer, bringing Uber’s total economic interest to ~53%. Uber has committed to not entering into a Domination and Profit Transfer Agreement (DPLTA) for a period of three years. Closing is expected in the second half of 2027.
The Offer Document will be submitted to BaFin for approval and published in accordance with the German Securities Acquisition and Takeover Act (WpÜG). The acceptance period for the Takeover Offer will commence upon publication of the Offer Document.
The Offer Document and other information pertaining to the Takeover Offer will be published, following approval by BaFin, on this website: www.delivering-value.com.
Conference Call with Uber Executives to Discuss Transaction
Uber will host a conference call to discuss the transaction at 5:00 a.m. Pacific Time (8:00 a.m. Eastern Time). A link to the live webcast of the conference call and a slide presentation are available on the Uber Investor Relations website at investor.uber.com.
Advisors
Morgan Stanley & Co. LLC and Deutsche Bank are serving as lead financial advisors to Uber. Bank of America and Goldman Sachs are also serving as financial advisors to Uber. Freshfields and Wachtell, Lipton, Rosen & Katz are serving as legal counsel to Uber and Cooley LLP is serving as legal counsel to Uber in connection with the financing. Affiliates of Morgan Stanley & Co. LLC, Bank of America and Deutsche Bank are providing the committed bridge facility to Uber. Evercore is serving as financial advisor to SSW. Paul Weiss, Hengeler Mueller, Baker Botts, and Gibson Dunn are serving as legal counsel to SSW.
About Uber
Uber’s mission is to create opportunity through movement. We started in 2010 to solve a simple problem: how do you get access to a ride at the touch of a button? More than 75 billion trips later, we’re building products to get people closer to where they want to be. By changing how people, food, and things move through cities, Uber is a platform that opens up the world to new possibilities.
About Delivery Hero
Delivery Hero is the world’s leading local delivery platform, operating its service in around 65 countries across Asia, Europe, Latin America, the Middle East and Africa. The Company started as a food delivery service in 2011 and today runs its own delivery platform on four continents. Additionally, Delivery Hero is pioneering quick commerce, the next generation of e-commerce, aiming to bring groceries and household goods to customers in under one hour and often in 20 to 30 minutes. Headquartered in Berlin, Germany, Delivery Hero has been listed on the Frankfurt Stock Exchange since 2017 and is part of the MDAX stock market index. For more information, please visit www.deliveryhero.com.
About SSW Partners
SSW Partners is a New York-based private investment firm that is a trusted partner to leading corporations, investment firms and families. The principals of SSW have substantial investing, operating, and transaction experience internationally. SSW has jointly led two public-to-private transactions: the US$4.6 billion privatization of Veoneer in partnership with Qualcomm and the US$7.1 billion privatization of ESR Group.
Forward-Looking Statements
This press release contains forward-looking statements regarding the proposed transaction and Uber’s future business expectations which involve risks and uncertainties. Actual results may differ materially from the results predicted, and reported results should not be considered as an indication of future performance. Forward-looking statements include all statements that are not historical facts and can be identified by terms such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “hope,” “intend,” “may,” “objective,” “ongoing,” “plan,” “potential,” “predict,” “should,” “will,” or “would” or similar expressions and the negatives of those terms. Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause Uber’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. These risks, uncertainties and other factors relate to, among others: risks and uncertainties related to the pending transaction, including the failure to obtain, or delays in obtaining, required regulatory approvals, the risk that such approvals may result in the imposition of conditions that could adversely affect us or the expected benefits of the proposed transaction, or the failure to satisfy any of the closing conditions to the tender offer on a timely basis or at all; costs, expenses or difficulties related to the transaction; failure to realize the expected benefits and synergies of the proposed transaction in the expected timeframes or at all; the potential impact of the announcement, pendency or consummation of the proposed transaction on relationships with Uber’s and/or Delivery Hero’s employees, merchants, suppliers, couriers and other business partners; the risk of litigation or regulatory actions to Uber and/or Delivery Hero; inability to retain key personnel; changes in legislation or government regulations affecting Uber or Delivery Hero; the potential impact of the transaction on Uber’s business, financial condition and operating results; the ability to complete the proposed transaction on the anticipated terms, including financing terms, timing and conditions; and economic financial, social or political conditions that could adversely affect Uber, Delivery Hero or the proposed transaction. For additional information on other potential risks and uncertainties that could cause actual results to differ from the results predicted, please see Uber’s Annual Report on Form 10-K for the year ended December 31, 2025 and subsequent quarterly reports and other filings filed with the Securities and Exchange Commission from time to time. All information provided in this press release is as of the date of this press release and any forward-looking statements contained herein are based on assumptions that Uber believes to be reasonable as of this date. Uber undertakes no duty to update this information unless required by law.
The tender offer described in the offer document is not being and will not be made, directly or indirectly, in any country or jurisdiction in which it would be considered unlawful or otherwise violate any applicable laws or regulations, or which would require Uber International Technologies II Corporation (the “Bidder”), Uber or any of its subsidiaries to change or amend the terms or conditions of the offer in any material way, to make an additional filing with any governmental, regulatory or other authority or take additional action in relation to the offer. It is not intended to extend the offer to any such country or jurisdiction. Any such documents relating to the offer must neither be distributed in any such country or jurisdiction nor be sent into such country or jurisdiction, and must not be used for the purpose of soliciting the purchase of securities of Delivery Hero by any person or entity resident or incorporated in any such country or jurisdiction.
Restrictions
The distribution of this press release may, in some countries, be restricted by law or regulation. Accordingly, persons who come into possession of this document should inform themselves of and observe these restrictions. To the fullest extent permitted by applicable law, the Bidder and Uber disclaim any responsibility or liability for the violation of any such restrictions by any person. Any failure to comply with these restrictions may constitute a violation of the securities laws of that jurisdiction. Neither Uber nor the Bidder nor any of their respective advisors, assumes any responsibility for any violation by any of these restrictions. Any Delivery Hero shareholder who is in any doubt as to his or her position should consult an appropriate professional advisor without delay.
Information for shareholders of Delivery Hero in the United States
Shareholders of Delivery Hero in the United States are advised that the tender offer will be made for shares in a European Company (Societas Europaea) incorporated under German law and is subject to the statutory provisions of the Federal Republic of Germany on the implementation and conduct of such an offer, as well as certain applicable securities law provisions of the United States. The tender offer will, in particular, be implemented in accordance with (i) the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, “WpÜG”), WpÜG and the WpÜG Offer Regulation, and (ii) certain applicable securities law provisions of the United States.
Delivery Hero’s shares are not listed on a U.S. securities exchange and Delivery Hero is not subject to the periodic reporting requirements of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and is not required to, and does not, file any reports with the U.S. Securities and Exchange Commission (the “SEC”) thereunder.
The tender offer is expected to be made in the United States pursuant to Section 14(e) and Regulation 14E under the Exchange Act, subject to exemptions provided by Rule 14d-1(d) under the Exchange Act, known as a “Tier II” tender offer, and otherwise in accordance with the requirements of the laws of the Federal Republic of Germany. Accordingly, the tender offer will be subject to disclosure and procedural requirements of German law, certain of which – including with respect to the tender offer timetable, settlement procedures, withdrawal, waiver of conditions and timing of payments – are different from those of the United States. The tender offer will be made to Delivery Hero’s shareholders resident in the United States on the same terms and conditions as those that will be made to all other Delivery Hero shareholders.
To the extent permissible under applicable law or regulations, including Rule 14e-5 of the Exchange Act, Uber, the Bidder and their affiliates or its brokers and its brokers’ affiliates (acting as agents for Uber, the Bidder or their affiliates, as applicable) may from time to time after the date of this presentation and during the pendency of the tender offer, and other than pursuant to the tender offer, directly or indirectly, purchase or arrange to purchase shares of Delivery Hero that are the subject of the tender offer. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. To the extent any such purchases are made outside the tender offer at a price per share greater than the tender offer price, the offer consideration will be increased, as necessary, to match such higher price. To the extent information about such purchases or arrangements to purchase is made public in Germany, such information will be disclosed by means reasonably calculated to inform U.S. shareholders of Delivery Hero of such information. No purchases will be made outside the tender offer in the United States by or on behalf of Uber. In addition, the financial advisers to Uber may also engage in ordinary course trading activities in securities of Delivery Hero, which may include purchases or arrangements to purchase such securities. To the extent any such financial adviser is acting jointly with the Bidder within the meaning of Section 2 para. 5 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz), the offer consideration must be increased, as necessary, to match any higher acquisition price paid outside the tender offer. To the extent required in Germany, any information about such purchases will be made public in Germany in the manner required by German law.
Neither the SEC nor any U.S. state securities commission has approved or disapproved the tender offer, passed upon the merits or fairness of the tender offer, or passed any comment upon the adequacy, accuracy or completeness of the disclosure in relation to the tender offer. Any representation to the contrary is a criminal offence in the United States.
The receipt of cash pursuant to the tender offer by a U.S. holder of Delivery Hero shares may be a taxable transaction for U.S. federal income tax purposes and under applicable U.S. state and local, as well as foreign and other, tax laws. Each holder of Delivery Hero shares is urged to consult its independent professional adviser immediately regarding the tax consequences of accepting the tender offer.
Delivery Hero shareholders domiciled or habitually resident in the United States may face difficulties in enforcing their rights and claims under U.S. federal securities laws because Delivery Hero is domiciled outside the United States and some or all of its directors and officers are domiciled outside the United States. U.S. shareholders may not be able to sue a company incorporated outside the United States or its directors and officers in a court outside the United States for violations of U.S. securities laws. Furthermore, difficulties may arise in enforcing judgments of a U.S. court against a company incorporated outside the United States.
Contacts
Uber
Investors: [email protected]
Press: [email protected]
Delivery Hero
Investors: [email protected]
Press: [email protected]
SSW Partners
Press: [email protected]
Exhibit 99.2
July 16 , 2026 Announcement of Uber’s Acquisition of Delivery Hero
2 Forward - Looking Statements This presentation contains forward - looking statements within the meaning of Section 27A of the Securities Act of 1933, and Secti on 21E of the Securities Exchange Act of 1934, which includes forward - looking statements regarding the proposed transaction and Uber’s and Delivery Hero’s future business expectations, which involve risks and uncertainties. Actual results may differ mat eri ally from the results predicted, and reported results should not be considered as an indication of future performance. Forwar d - looking statements include all statements that are not historical facts and can be identified by terms such as “anticipate,” “be lieve,” “continue,” “could,” “estimate,” “expect,” “hope,” “intend,” “may,” “objective,” “ongoing,” “plan,” “potential,” “pre dic t,” “should,” “will,” or “would” or similar expressions and the negatives of those terms. Forward - looking statements involve known a nd unknown risks, uncertainties and other factors that may cause Uber’s or Delivery Hero’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forw ard - looking statements. These risks, uncertainties and other factors relate to, among others: risks and uncertainties related to th e pending transaction, including the failure to obtain, or delays in obtaining, required regulatory approvals, the risk that su ch approvals may result in the imposition of conditions that could adversely affect Uber or the expected benefits of the propose d transaction, or the failure to satisfy any of the closing conditions to the tender offer, including conditions relating to re gul atory approval, on a timely basis or at all; costs, expenses or difficulties related to the transaction; the failure to reali ze the expected benefits and synergies of the proposed transaction in the expected timeframes or at all or the ability to achieve the expecte d f inancial and operating performance and future opportunities following the completion of the proposed transaction; the potenti al impact of the announcement, pendency or consummation of the proposed transaction on relationships with Uber’s and/or Delivery He ro’s employees, merchants, suppliers, couriers and other business partners, including the diversion of Uber’s and Delivery Hero’s respective managements from business operations; the risk of litigation or regulatory actions to Uber and/or Delivery Her o; inability to retain key personnel; changes in legislation or government regulations affecting Uber or Delivery Hero; the p ote ntial impact of the transaction on Uber’s or Delivery Hero’s business, financial condition and operating results; the ability to co mpl ete the proposed transaction on the anticipated terms, including financing terms, and in the anticipated timeframe or at all; an d economic financial, social or political conditions that could adversely affect Uber, Delivery Hero or the proposed transactio n. For additional information on other potential risks and uncertainties that could cause actual results to differ from the resu lts predicted, please see Uber’s Annual Report on Form 10 - K for the year ended December 31, 2025 and subsequent quarterly reports, other filing s filed with the Securities and Exchange Commission from time to time and Uber’s and Delivery Hero’s other press releases and public filings. All information provided in this presentation and any forward - looking statements contained herein are based on a ssumptions that we believe to be reasonable as of this date. Undue reliance should not be placed on the forward - looking statements in this presentation, which are based on information available to us on the date hereof. We undertake no duty to u pda te this information unless required by law. Restrictions To supplement Uber’s financial information prepared and presented in accordance with generally accepted accounting principles in the United States of America, or GAAP, this presentation includes the following non - GAAP financial measure: Adjusted EBITDA. The presentation of this financial information is not intended to be considered in isolation or as a substitute for, or super ior to, the financial information prepared and presented in accordance with GAAP. We use our non - GAAP financial measures for financ ial and operational decision - making and as a means to evaluate period - to - period comparisons. Reconciliations to the most directly co mparable GAAP measures are included in the back of the accompanying slide presentation, which is posted alongside this video presentation on Uber's Investor Relations website. For more information on our non - GAAP financial measures, please see our SEC f ilings. Uber defines Adjusted EBITDA as net income (loss), excluding (i) income (loss) from discontinued operations, net of income ta xes , (ii) net income (loss) attributable to non - controlling interests, net of tax, (iii) provision for (benefit from) income taxes, (iv)income (loss) from equity method investments, (v) interest expense, (vi) interest income, (vii) other income (expense), net, (viii) dep reciation and amortization, (ix) stock - based compensation expense, (x) certain legal, non - income tax, and regulatory reserve cha nges and settlements, (xi) goodwill and asset impairments/loss on sale of assets, (xii) acquisition, financing and divestitures re lat ed expenses, (xiii) restructuring and related charges and (xiv) other items not indicative of our ongoing operating performan ce. We believe that our non - GAAP financial measures provide meaningful supplemental information regarding our performance by excludi ng certain items that may not be indicative of our recurring core business operating results. We believe that both our management and investors benefit from referring to our non - GAAP financial measures in assessing our per formance and when planning, forecasting, and analyzing future periods. Our non - GAAP financial measures also facilitate our management’s internal comparisons to our historical performance. We believe our non - GAAP financial measures are useful to invest ors both because (1) they allow for greater transparency with respect to key metrics used by our management in its financial and operational decision - making and (2) they are used by our institutional investors and the analyst community to help them anal yze the health of our business. There are a number of limitations related to the use of non - GAAP financial measures. In light of these limitations we provide sp ecific information regarding the GAAP amounts excluded from these non - GAAP financial measures and evaluate these non - GAAP financial measures together with their relevant financial measures in accordance with GAAP. In regards to forward looking non - GAAP guidance, we are not able to reconcile the forward - looking Non - GAAP EPS measures to the c losest corresponding GAAP measures without unreasonable efforts because we are unable to predict the ultimate outcome of certain significant items. These items include, but are not limited to, significant legal settlements, unrealized gains and l oss es on equity investments, tax and regulatory reserve changes, restructuring costs and acquisition and financing related impac ts. Certain financial information relating to Delivery Hero included in this presentation has been derived from Delivery Hero’s p ubl icly reported financial information. Delivery Hero prepares its consolidated financial statements in accordance with IFRS Acc oun ting Standards as adopted by the European Union. Certain measures regarding Delivery Hero, including Adjusted EBITDA, are non - IFRS fi nancial measures and may not be comparable to similarly titled measures used by other companies. Such measures should not be considered in isolation or as a substitute for financial measures prepared in accordance with IFRS. For definitions, calcu lat ion methodologies, and reconciliations to the most directly comparable IFRS measures, where applicable, please refer to Deliv ery Hero's publicly available investor relations materials and financial reports available at ir.deliveryhero.com. The distribution of this presentation may, in some countries, be restricted by law or regulation. Accordingly, persons who co me into possession of this document should inform themselves of and observe these restrictions. To the fullest extent permitted by applicable law, Uber and the Bidder disclaim any responsibility or liability for the violation of any such restrictions by an y p erson. Any failure to comply with these restrictions may constitute a violation of the securities laws of that jurisdiction. Nei ther Uber nor the Bidder, nor any of their respective advisors, assumes any responsibility for any violation by any of these restrictions. Any Delivery Hero shareholder who is in any doubt as to his or her position should consult an appropriate professional advisor wi th out delay. Non - GAAP Financial Measure Disclosure
3 Proposed transaction summary 3 Transaction to be funded through existing cash on balance sheet and new debt financing. Uber is committed to maintaining its inv estment grade rating and to its capital allocation framework. Gross leverage expected to remain below 2x Transaction expected to be Non - GAAP EPS accretive upon close; high - single - digit percentage accretion by year three Financial Impact Delivery Hero Management and Supervisory Boards unanimously welcome and support the takeover offer and intend to recommend th at shareholders tender into the offer, subject to the review of the offer document³ Prosus has irrevocably agreed to tender its entire stake in Delivery Hero (~17% of shares outstanding) into the offer The offer will be subject to customary closing conditions, including receipt of specified regulatory approvals, with closing expected in H2’27 Board Support and Timing €41.50 per share Offer Price represents $14.8 billion Equity Value (implied for 100% of the company)¹, or $13.7 billion adjusted for Uber’s prior stake purchases Uber’s multiple paid implies ~8x EV / 2027E Adj. EBITDA (incl. Uber’s existing economic ownership and over $1.2 billion of run - rate synergies) 2 Delivery Hero has agreed to sell its business operations in 14 markets separately to SSW Partners for ~$1.6 billion Uber has entered into an agreement to acquire Delivery Hero via a voluntary public takeover offer in cash for all shares not alr eady held by Uber, with a minimum acceptance threshold of 50% plus one share (including Uber’s existing ~37% economic ownership) Transaction Overview Notes: Transaction values translated from EUR to USD at 1.14 spot conversion rate. 1 Based on fully diluted shares outstanding of 314 million. 2. Uber purchased a ~37% economic stake in Delivery Hero at price s b elow the Offer Price, reducing Uber’s all - in equity purchase price. Net debt and other equity - to - enterprise bridge items (including non - controlling interests) of $4.2 billion and other adjustments. Consensus as per Delivery Hero company compil ed consensus. Adjusted EBITDA presented here is adjusted based on Uber’s reporting standards (U.S. GAAP) and also reflects the pro - forma group to be acquired. 3. Subject to the formal reasoned opinion to be published following the publication of the offer document.
4 Delivery Hero at a glance 4 49M MAPCs 900K Earners $42B Gross Bookings $1.1B Adj. EBITDA Markets #1 positions Key brands APAC 10 7 EMEA 20 27 LatAm 13 11 Scaled multi - vertical marketplace Global leadership Notes: Financial and operational data reflects 2025 figures. All Delivery Hero figures reflect Delivery Hero assets within ac qui sition scope. Delivery Hero financials are presented as prepared in their consolidated financial statements in accordance with IFRS. Delivery Hero financials translated from EUR to USD at 1.12 average conversion rate. 1. Monthly active users used as a proxy for MAPCs (Monthly Active Platform Consumers). 2. Gross Merchandise Value (GMV) used as a proxy for Gross Bookings. Delivery Hero defines GMV as the total value paid by customers (including VAT, delivery fees, other fees and subsidies but excluding subscription fees, tips and delivery - as - a - service fees). 2 1.1M Merchants 1 2.9B Trips
5 Extending Uber’s global leadership to go anywhere and get anything 5 + Total markets 1 11 8 18 2 15 41 7 99 $42 Delivery Hero 2025 Gross Bookings ($B) $97 Uber Mobility $5 Freight $91 Uber Delivery 2025 Adj. EBITDA ($B) $133 $236 $6.0 $9.8 $1.1 $8.7 ~1.5x Rest of Operational Peers + 1 Notes: Company filings reflect calendar year 2025 data; broker estimates for private companies and companies with undisclosed se gment financials. All Delivery Hero figures reflect Delivery Hero assets within acquisition scope and are presented as prepared in their consolidated financial statements in accordance with IFRS. Gross Bookings figures represent 2025 Delivery G ros s Bookings (or competitor - equivalent metric) for 100% owned entities. Delivery Hero financials translated from EUR to USD at average conversion rate of 1.12. Meituan figures reflect food delivery segment due to lack of broker estimates for Gro cer y & Retail - equivalent segment. 1. Represents combined 2025 Adj. EBITDA for peer set consisting of Eternal, Lyft, Grab, Prosus, Instacart, Didi, and DoorDash . E xcludes Meituan due to lack of broker estimates for segment - level profitability. 1211
6 Transaction rationale Unlocks a much larger cross - platform opportunity Global platform accelerates product innovation for customers Clear roadmap for value creation with significant synergies 6 1 2 3 4 6 Highly complementary geographic footprint, with leading category positions
7 Greater benefits for consumers, merchants and earners Greater selection, better experience and value More engagement across Mobility and Delivery More demand and opportunities Consumers Merchants Earners Uber’s best in class tech and products, globally Consumers Merchants Higher demand from a larger, more engaged consumer base Earners More cross - platform earnings opportunities 7 Deliver value across platform , with a deeper Uber One offering Enhanced tooling for advertising and marketing Denser network increases utilization (1) Accelerating Innovation (2) Complementary Footprint (3) Cross - Platform Opportunity (4) Value Creation
8 Delivery Hero expands Uber to ~100 markets (1) Accelerating Innovation (2) Complementary Footprint (3) Cross - Platform Opportunity (4) Value Creation Cross - Platform Markets Total Markets Pre Deal Post Deal 34 58 - > 79 99 - > Existing Uber Markets New Delivery Markets New Cross - Platform Markets 50M+ new eligible cross - platform users 1 Note: All Delivery Hero figures reflect Delivery Hero assets within acquisition scope. 1. Calculated as sum of Uber MAPCs and Delivery Hero monthly active customers in new cross - platform markets, assuming no existin g customer overlap. Cross - platform market defined as a market where Uber offers both Mobility and Delivery services.
9 Enhanced cross - platform position unlocks meaningful topline synergies 9 (1) Accelerating Innovation (2) Complementary Footprint (3) Cross - Platform Opportunity (4) Value Creation 35M+ Delivery Hero users in new cross - platform markets Large audience opportunity 15M+ Uber Mobility users in new cross - platform markets 1 Upsell to cross - platform 3 Efficient acquisition 2 Single business user Cross - platform user >50% lower cost of incremental consumer acquisition compared to paid channels Paid channels Cross - platform Cross - platform users generate 3x more Gross Bookings vs. single business users
10 (1) Accelerating Innovation (2) Complementary Footprint (3) Cross - Platform Opportunity (4) Value Creation - > Uber and Talabat are successful standalone brands in the Middle East… Mobility Strong topline momentum² +34% YoY +28% YoY Large consumer ecosystems ~8M MAUs ~8M MAUs³ Attractive financial profile ~7% Adj. EBITDA Margin 4 ~7% Adj. EBITDA Margin …and are well - positioned to rank among Uber’s strongest cross - platform ecosystems when combined Global Clear category leadership 3 - 4x Uber’s top cross - platform markets are 3 - 4x larger than #2 player across Mobility and Delivery, on average Cross - platform case study: combination enhances Uber’s position in the Middle East 10 ✓ ✓ Delivery Best in Class 20% ~28% Cross - platform coverage 5 #1 CP 1 1. Category position. 2. Reflects 2025 Gross Bookings YoY constant - currency growth. 3. Monthly Active Users. 4. Talabat Adjusted EBITDA presented here in line with Delivery Hero’s reporting standards (IFRS). 5. Defined as percentage of MAPCs in markets with active Mobility and Delivery businesses who use both offerings. 31
11 Significant value creation runway Expand cross - platform adoption (higher engagement, frequency, and customer lifetime value) + = Driving value to shareholders 11 (1) Accelerating Innovation (2) Complementary Footprint (3) Cross - Platform Opportunity (4) Value Creation Further upside and benefits to platform Synergy realization Annualized synergies of over $1.2 billion within 18 months of closing Shared common tech platform and other shared services Deploy Uber's proven platform capabilities (marketplace technology, Uber One, and operating expertise) Expect transaction to be Non - GAAP EPS accretive upon close; high - single - digit percentage accretion by year three
12 Transaction preserves financial flexibility and strong investment grade balance sheet 12 Transaction financing ⏵ To be financed through existing cash and new debt financing ⏵ Executed a committed bridge facility of ~€14 billion for cash confirmation purposes; to be refinanced prior to closing Balance sheet and credit profile ⏵ Gross leverage expected to remain below 2x ⏵ Committed to maintaining investment grade rating SSW transaction structure ⏵ Delivery Hero has agreed to sell its business operations in certain markets to SSW Partners for ~$1.6 billion , particularly in Delivery overlap markets¹ ⏵ Separate transaction, which is conditional on closing of Uber offer for Delivery Hero Delivery Hero markets being sold to SSW Spain Sweden Türkiye Austria Chile Cyprus Czechia Ecuador Greece Norway Poland Portugal Romania (Total: 14 markets, ~$11 billion Gross Bookings) Moldova 1. Uber has agreed to lend SSW funds to finance the majority of the SSW transaction. SSW will repay Uber such funds over time , i ncluding in the event of a future sale of these assets.
13 Fully aligned with Uber’s capital allocation framework High confidence in execution Clear regulatory and integration path Strategic fit Complements organic strategy Financial discipline Accretive at an attractive valuation Multiple strategic objectives Expands TAM, platform, capabilities Invest in organic growth 1 Invest in autonomous 2 Return excess capital 4 Maintain investment grade strength 5 Pursue selective M&A 3 ✓ ✓ ✓ ✓ 13
14 Delivery Hero strengthens Uber’s long - term investment thesis 14 Expanded growth platform Adds attractive markets and complementary capabilities Greater cross - platform engagement Broader product offering and more cross - platform activity Higher earnings potential Synergies, operating leverage, and Non - GAAP EPS accretion Continued financial discipline Consistent with capital allocation framework A stronger platform, broader growth opportunities, and greater long - term shareholder value
16 Uber Non - GAAP Reconciliations Adjusted EBITDA Reconciliation – FY25 (Unaudited) $ in millions Fiscal Year Ended December 31, 2025 $8,730 Adjusted EBITDA Add (deduct): (564) Legal, non - income tax, and regulatory reserve changes and settlements (2) Goodwill and asset impairments / loss on sale of assets (9) Restructuring and related charges (2) Loss on lease arrangements, net (43) Acquisition, financing and divestitures related expenses (719) Depreciation and amortization (1,826) Stock - based compensation expense $5,565 Income from operations Add (deduct): (68) Other income (expense), net (440) Interest expense 743 Interest income (53) Loss from equity method investments 4,346 (Provision for) benefit from income taxes (40) Net (income) loss attributable to non - controlling interests, net of tax $10,053 Net income attributable to Uber Technologies, Inc.