Exhibit 10.1

Execution Version

EIGHTH AMENDMENT TO CREDIT AGREEMENT

This EIGHTH AMENDMENT to the Credit Agreement referred to below, dated as of April 12, 2024 (this “Amendment”) is entered into by and among HLF Financing SaRL, LLC, a Delaware limited liability company (the “Term Loan Borrower”), Herbalife Ltd. (f/k/a Herbalife Nutrition Ltd.), a Cayman Islands exempted company incorporated with limited liability with company number 116838 and with its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (“Parent”), Herbalife International Luxembourg S.à R.L., a Luxembourg private limited liability company (société à responsabilité limitée), existing and organized under the laws of Luxembourg, having its registered office at 16, avenue de la Gare, L-1610 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 88006 (“HIL”), HBL IHB Operations S.à r.l., a Luxembourg private limited liability company (société à responsabilité limitée), existing and organized under the laws of Luxembourg, having its registered office at 16, avenue de la Gare, L-1610 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 257956 (“HBL IHB”), Herbalife International, Inc., a Nevada corporation (“HII” and, together with Parent, the Term Loan Borrower, HBL IHB and HIL, the “Revolver Borrowers”; the Revolver Borrowers, together with the Term Loan Borrower, are referred to herein as the “Borrowers”), certain subsidiaries of the Borrowers as Subsidiary Guarantors, the 2024 Refinancing Term Loan B Lenders (as defined below), the 2024 Refinancing Revolving Credit Lenders (as defined below), each Issuing Bank, Jefferies Finance LLC (“Jefferies”) as Term Loan B Agent (together with its successors and permitted assigns in such capacity, the “Term Loan B Agent”) and as Collateral Agent (together with its successors and permitted assigns in such capacity, the “Collateral Agent”) and Coöperatieve Rabobank U.A., New York Branch (“Rabobank”) as Revolver Administrative Agent (together with its successors and permitted assigns in such capacity, the “Revolver Administrative Agent”, together with the Term Loan B Agent, the “Administrative Agents”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement or the Amended Credit Agreement (as the context may require).

RECITALS

WHEREAS, the Borrowers, the Subsidiary Guarantors, the several Lenders from time to time party thereto, the Term Loan B Agent, the Revolver Administrative Agent and the Collateral Agent have entered into that certain Credit Agreement, dated as of August 16, 2018 (together with all exhibits and schedules attached thereto, as amended by the First Amendment to Credit Agreement, dated as of December 12, 2019, as further amended by the Second Amendment to Credit Agreement, dated as of March 19, 2020, as further amended by the Third Amendment to Credit Agreement, dated as of February 10, 2021, the Fourth Amendment to Credit Agreement, dated as of July 30, 2021, the Fifth Amendment to Credit Agreement, dated as of April 3, 2023, the Sixth Amendment to Credit Agreement, dated as of April 28, 2023 and the Seventh Amendment to Credit Agreement, dated as of June 29, 2023 and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” and as amended by this Amendment, the “Amended Credit Agreement”);

WHEREAS, on the date hereof (but prior to giving effect to this Amendment), there are (a) outstanding Term B Loans in an aggregate principal amount of $584,325,000 (the “Existing

Term B Loans” and the lenders thereunder, the “Existing Term Loan B Lenders”), (b) Term A Loans in an aggregate principal amount of $228,937,499.95 (the “Existing Term A Loans” and, together with the Existing Term B Loans, the “Existing Term Loans”) under the Credit Agreement and (c) outstanding Revolving Credit Commitments in an aggregate principal amount of $330,000,000 under the Credit Agreement (the “Existing Revolving Credit Commitments” and the lenders thereunder, the “Existing Revolving Credit Lenders”) and any outstanding Revolving Credit Loans under the Credit Agreement (the “Existing Revolving Credit Loans”);

WHEREAS, (a) to effectuate the refinancing of the Existing Term Loans, the Term Loan Borrower intends to incur Replacement Term Loans under Section 2.24 of the Credit Agreement in an aggregate amount of up to $400,000,000 (the “2024 Refinancing Term B Loans”; and such facility, the “2024 Refinancing Term Loan B Facility”), which shall be incurred on the Eighth Amendment Effective Date, the proceeds of which, along with the proceeds of a contemporaneous note offering of up to $800,000,000 in aggregate principal amount of senior secured notes (herein, the “Note Offering”), will be used to repay in full the aggregate principal amount of Existing Term Loans outstanding on the Eighth Amendment Effective Date under the Credit Agreement and pay the accrued but unpaid interest in connection therewith, (b) to effectuate the refinancing of the Existing Revolving Credit Commitments, the Revolver Borrowers intend to incur Incremental Revolving Commitments in an aggregate amount of up to $400,000,000 (the “2024 Refinancing Revolving Credit Commitments”; and such facility, the “2024 Refinancing Revolving Credit Facility”), in accordance with Section 2.23 of the Credit Agreement and (c) in connection with the foregoing, the Borrowers intend to amend the Credit Agreement pursuant to Sections 2.23, 2.24 and 9.2 thereof to effect the other modifications set forth in this Amendment;

WHEREAS, in connection with the arrangement of (i) the 2024 Refinancing Term B Loans, Citibank, N.A.¹ (“Citi”), Rabobank, Bank of America, N.A., Citizens Bank, N.A. and Mizuho Bank, Ltd. (in each case, together with any of their affiliates) are acting as joint lead arrangers and joint bookrunners (the “TLB Refinancing Arrangers”) and Comerica Securities and Standard Chartered Bank plc (in each case, together with any of their affiliates) are acting as co-managers and (ii) the 2024 Refinancing Revolving Credit Facility, Rabobank, Citi, Bank of America, N.A., Citizens Bank, N.A. and Mizuho Bank, Ltd. (in each case, together with any of their affiliates) will act as joint lead arrangers and bookrunners (the “RCF Refinancing Arrangers”, together the “Refinancing Arrangers” and each, a “Refinancing Arranger”) and Comerica Securities and Standard Chartered Bank plc (in each case, together with any of their affiliates) are acting as co-managers;

WHEREAS, each Existing Term Loan B Lender that executes and delivers a consent and executed signature page to this Amendment in the form of the “Lender Election” attached to the Memorandum to Lenders (the “Memo”) posted on LendAmend or SyndTrak (or similar electronic platform) on April 1, 2024 (a “Lender Consent”) electing the “Cashless Settlement Option” to the TLB Refinancing Arrangers (each such consenting Lender, a “Cashless Settlement Term Lender”) (i) consents to the terms of this Amendment and the Amended Credit Agreement, (ii) agrees to exchange the entire aggregate amount of its Existing Term B Loans (or such lesser

 

1	“Citi” shall mean Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated herein.

 

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amount as allocated to it by the TLB Refinancing Arrangers) (“Cashless Settlement Term Loans”) for 2024 Refinancing Term B Loans in an equal principal amount to such Cashless Settlement Term Loans and (iii) shall become a 2024 Refinancing Term Loan B Lender;

WHEREAS, each Existing Term Loan B Lender that executes a Lender Consent electing the “Post-Closing Settlement Option” (each such consenting Lender, a “Cash Settlement Term Lender” and, together with the Cashless Settlement Term Lenders, the “Exchanging Term Lenders”) (i) consents to the terms of this Amendment and the Amended Credit Agreement, (ii) agrees to (x) have the entire aggregate principal amount of its Existing Term B Loans (“Cash Settlement Term Loans”, and together with Cashless Settlement Term Loans, the “Rolled Term B Loans”) prepaid by the Term Loan Borrower on the Eight Amendment Effective Date and (y) purchase, by assignment by way of a Master Assignment and Acceptance Agreement substantially in the form attached hereto as Annex A (a “Master Assignment”), 2024 Refinancing Term B Loans in an aggregate principal amount equal to such Cash Settlement Term Loans (or such lesser amount as allocated by the TLB Refinancing Arrangers) from Citi and (iii) shall become a 2024 Refinancing Term Loan B Lender;

WHEREAS, each Person that has agreed to become a Term Loan B Lender under the Amended Credit Agreement by providing new Term Loan B Commitments to provide 2024 Refinancing Term B Loans (collectively, the “Additional 2024 Term Loan B Lenders” and together with the Exchanging Term Lenders, the “2024 Refinancing Term Loan B Lenders”) to the Term Loan Borrowers on the Eighth Amendment Effective Date (the “Additional 2024 Term B Loans”) on the terms and conditions set forth in this Amendment and the Amended Credit Agreement in an amount set forth against its name on Schedule I hereto (“Additional 2024 Term Loan B Commitment”) consents to terms of this Amendment;

WHEREAS, each Existing Term Loan B Lender that fails to execute and return a Term Loan B Lender Consent by the deadline as mentioned in the Memo (the “Consent Deadline”) (each, a “Non-Consenting Term Loan B Lender”) shall have the entire aggregate principal amount of its Existing Term B Loans prepaid by the Term Loan Borrower on the Eight Amendment Effective Date;

WHEREAS, in addition to the foregoing, the Revolver Borrowers have provided to the Revolver Administrative Agent, and this Amendment shall be deemed to constitute, a request to incur, refinance and replace the Existing Revolving Credit Commitments under the Existing Revolving Credit Facility with 2024 Refinancing Revolving Credit Commitments under the 2024 Refinancing Revolving Credit Facility on terms as set forth in this Amendment and the Amended Credit Agreement. The Revolver Borrowers have requested that such 2024 Refinancing Revolving Credit Commitments be provided by banks or other financial institutions that become Lenders or are Existing Revolving Credit Lenders under the Credit Agreement (each such Person committing to provide and providing any such 2024 Refinancing Revolving Credit Commitments on the Eighth Amendment Effective Date being referred to herein as an “2024 Refinancing Revolving Credit Lenders”);

WHEREAS, each 2024 Refinancing Revolving Credit Lender who executes and delivers this Amendment agrees to provide 2024 Refinancing Revolving Credit Commitments and make Borrowings thereunder available to the Revolver Borrowers from time to time on and following

 

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the Eighth Amendment Effective Date on the terms and conditions set forth in this Amendment and the Amended Credit Agreement in an amount set forth against its name on Schedule I hereto.

WHEREAS, all the Existing Revolving Credit Loans outstanding under the Existing Revolving Credit Commitments immediately prior to the Eighth Amendment Effective Date shall be repaid in full and all the Existing Revolving Credit Commitments shall be irrevocably terminated and shall be refinanced and replaced by the 2024 Refinancing Revolving Credit Commitments.

WHEREAS, On the Eighth Amendment Effective Date, all outstanding Letters of Credit issued under the Credit Agreement pursuant to the Existing Revolving Credit Commitments shall remain outstanding and shall, for all purposes of the Amended Credit Agreement, be automatically deemed issued under 2024 Refinancing Revolving Credit Commitments and 2024 Refinancing Revolving Credit Facility.

WHEREAS, each Loan Party party hereto (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) expects to realize substantial direct and indirect benefits as a result of this Amendment becoming effective and the consummation of the transactions contemplated hereby and agrees to reaffirm its obligations, guaranties and any security interests granted by it pursuant to the Credit Agreement, the Collateral Documents, and the other Loan Documents to which it is a party;

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendments to Credit Agreement.

(a) The Credit Agreement is, effective as of the Eighth Amendment Effective Date, and subject to the satisfaction of the conditions precedent set forth in SECTION 3 below, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and insert the added text (indicated textually in the same manner as the following example: added text) as shown in Exhibit A hereto.

(b) Amendment to Schedule 2.1: Schedule 2.1 to the Credit Agreement is hereby amended and restated in the form attached as Schedule I hereto.

(c) For the avoidance of doubt, upon execution and effectiveness of the Resignation and Appointment Agreement (as defined below), all references in any Loan Document to Jefferies Finance LLC as Term Loan B Agent and/or as Collateral Agent, respectively, shall be deemed to refer to Citizens Bank, N.A., as Term Loan B Agent and/or as Collateral Agent, respectively.

SECTION 2. Facilities.

(A) 2024 Refinancing Term Loan B Facility

 

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(a) Exchanging Term Lenders. Each Exchanging Term Lender has agreed to continue all (or such lesser amount as the TLB Refinancing Arrangers allocate in their discretion) of its Existing Term B Loans as Rolled Term B Loans.

(b) Additional 2024 Term Loan B Lenders. Each Additional 2024 Term Loan B Lender agrees to make Additional 2024 Term B Loans, in a single draw, on the Eighth Amendment Effective Date to the Term Loan Borrower, in an aggregate principal amount equal to such Additional 2024 Term Loan B Lender’s Additional 2024 Term Loan B Commitment.

(c) For the avoidance of doubt, all interest accrued on the Existing Term Loans prior to the Eighth Amendment Effective Date shall be paid on the Eighth Amendment Effective Date (provided that, for the avoidance of doubt, interest shall not accrue on the Eighth Amendment Effective Date on the Existing Term Loans). Interest will accrue on the 2024 Refinancing Term B Loans from and after the Eighth Amendment Effective Date as provided in the Amended Credit Agreement. The initial Interest Period applicable to the 2024 Refinancing Term B Loans that are SOFR Loans shall be the period identified by the Borrower in the Borrowing Notice relating to the 2024 Refinancing Term Loans referenced in Section 3(b) of this Amendment

(d) The 2024 Refinancing Term Loan B Commitments of the 2024 Refinancing Term Loan B Lenders shall automatically terminate upon the funding of the 2024 Refinancing Term B Loans on the Eighth Amendment Effective Date.

(e) From and after the Eighth Amendment Effective Date, (i) each 2024 Refinancing Term Loan B Lender shall be a “Lender”, a “Term Loan B Lender” and a “Term Lender” for all purposes under the Amended Credit Agreement and the other Loan Documents and perform all the obligations of, and have all the rights of, a Lender thereunder, (ii) each 2024 Refinancing Term Loan B Commitment shall be a “Term Loan B Commitment”, a “Term Commitment” and a “Commitment” for all purposes under the Amended Credit Agreement and the other Loan Documents, (iii) the 2024 Refinancing Term Loan B Facility shall be a “Credit Facility”, a “Term Loan B Facility” and a “Term Facility” for all purposes under the Amended Credit Agreement and the other Loan Documents and (iv) the 2024 Refinancing Term B Loans shall each be a “Term B Loan”, a “Loan” and a “Term Loan” for all purposes under the Amended Credit Agreement and the other Loan Documents. The other terms of the 2024 Term Loans made pursuant to this Amendment shall be those set forth in the Amended Credit Agreement.

(B) 2024 Refinancing Revolving Credit Facility

(a) Each 2024 Refinancing Revolving Credit Lender who executes and delivers this Amendment agrees to provide 2024 Refinancing Revolving Credit Commitments and make Borrowings thereunder available to the Revolver Borrowers from time to time on and following the Eighth Amendment Effective Date on the terms and conditions set forth in this Amendment and the Amended Credit Agreement in an amount set forth against its name on Schedule I hereto.

(b) Pursuant to Section 2.10 of the Credit Agreement, the Revolver Borrowers have elected to terminate the Existing Revolving Credit Commitments of the Existing Revolving Credit Lenders. This Amendment constitutes the notice required pursuant to Section 2.10 of the Credit Agreement. On the Eighth Amendment Effective Date, all Existing Revolving Credit

 

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Commitments shall terminate in full and each Existing Revolving Credit Loan shall be repaid in full, together with all accrued and unpaid interest on, and all other amounts owing in respect of such Existing Revolving Credit Loans.

(c) On the Eighth Amendment Effective Date, (1) each Letter of Credit outstanding under the Existing Credit Agreement immediately prior to giving effect to this Agreement (each, an “Outstanding Letter of Credit”) will continue to remain outstanding and shall thereafter be deemed to be a Letter of Credit issued under the Amended Credit Agreement on the Eighth Amendment Effective Date for all purposes under the Amended Credit Agreement and the other Loan Documents and (2) the Issuing Bank of each Outstanding Letter of Credit shall be deemed to have sold to each 2024 Refinancing Revolving Credit Lender, and each 2024 Refinancing Revolving Credit Lender shall be deemed to have purchased from such Issuing Bank, without further action by any party hereto, an undivided interest and participation, pro rata (based on the percentage of the aggregate 2024 Refinancing Revolving Credit Commitments represented by such 2024 Refinancing Revolving Credit Lender’s 2024 Refinancing Revolving Credit Commitment), in such Outstanding Letter of Credit.

(d) On and after the Eighth Amendment Effective Date, (i) each 2024 Refinancing Revolving Credit Lender shall be a “Lender” and a “Revolving Credit Lender” for all purposes under the Amended Credit Agreement and the other Loan Documents and perform all the obligations of, and have all the rights of, a Lender thereunder, (ii) each 2024 Refinancing Revolving Credit Commitment shall be a “Revolving Credit Commitment” and a “Commitment” for all purposes under the Amended Credit Agreement and the other Loan Documents, (iii) each 2024 Refinancing Revolving Credit Loan shall be a “Loan” and a “Revolving Loan” for all purposes under the Amended Credit Agreement and the other Loan Documents, and (iv) the 2024 Refinancing Revolving Credit Facility shall be a “Credit Facility” and a “Revolving Credit Facility” for all purposes under the Amended Credit Agreement and the other Loan Documents.

(C) The parties hereto agree that this Amendment constitutes the notice of the prepayment, in full, of the Existing Term Loans and the Existing Revolving Credit Loans and the requirement set forth in Section 2.12 of the Credit Agreement is deemed satisfied hereby.

SECTION 3. Conditions of Effectiveness. The effectiveness of this Amendment (including the amendments contained in SECTION 1 and agreements contained in SECTION 2) are subject to the satisfaction (or written waiver) of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Eighth Amendment Effective Date”):

(a) This Amendment shall have been duly executed by the Borrowers, the Subsidiary Guarantors, each 2024 Refinancing Term Loan B Lender and each 2024 Refinancing Revolving Credit Lender, each Issuing Bank, the Term Loan B Agent, the Revolver Administrative Agent and the Collateral Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Administrative Agents;

(b) A Borrowing Request in accordance with Section 2.2 of the Credit Agreement;

 

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(c) The Administrative Agents shall have received favorable legal opinions of (A) Gibson, Dunn & Crutcher LLP, special counsel to the Loan Parties, (B) Snell & Wilmer, L.L.P., Nevada counsel to the Loan Parties, (C) Maples and Calder (Cayman) LLP, Cayman Islands counsel to the Loan Parties, (D) Latham & Watkins (London) LLP, English law counsel for the Administrative Agents, (E) Walder Wyss AG, Swiss counsel to the Loan Parties with respect to capacity of each Subsidiary Guarantor incorporated in Switzerland to enter into the Loan Documents to which it is a party, (F) Niederer Kraft Frey AG, Swiss counsel to the Collateral Agent regarding the validity of the confirmation of the Swiss first-ranking quota pledge agreements granted over the quotas of the Subsidiary Guarantors incorporated in Switzerland and (G) DLA Piper Luxembourg S.à r.l., Luxembourg counsel to the Loan Parties with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents and subsistence of security interest, in each case in form and substance reasonably satisfactory to the Administrative Agents;

(d) The Administrative Agents shall have received a certificate signed by a Responsible Officer of the Borrowers as to the matters set forth in paragraphs (g) and (h) of this SECTION 3;

(e) The Administrative Agents shall have received (I) a certificate dated as of the Eighth Amendment Effective Date of the corporate secretary or an assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Administrative Agents) of each of the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agents, certifying (i) that attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company or any Loan Parties incorporated in England and Wales) as of a recent date by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification, (ii) if applicable, that attached thereto is a true and complete copy of the bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or managers or other comparable governing body or bodies of such Loan Party (and, if applicable all the holders of the issued shares of such Loan Party), (i) authorizing the execution, delivery and performance of this Amendment and any related Loan Documents to which it is a party, (ii) approving the terms of, and the transactions contemplated by, this Amendment any related Loan Documents, and the continuing security interest, or granting of security interest, over Collateral pursuant to the relevant Collateral Documents; (iii) authorizing a specified person or persons to execute this Amendment, any other Loan Document and related documents on its behalf; and (iv) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (if relevant) to be signed and/or dispatched by it under or in connection with this Amendment, any other Loan Document and related documents, which are in full force and effect without amendment or supersession as of the date of the certificate, (iv) as to the incumbency and genuineness of the signature of each officer, director, manager or other comparable authorized manager or attorney of such Loan Party, executing this Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the

 

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Cayman Islands and HBL Ltd., copies of their internal registers of directors and officers, registers of members (except the register of members of the Parent) and registers of mortgages and charges (except such register of HBL Ltd.), (v) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of the minutes of the quotaholder resolutions of each of the such Loan Party duly adopted by the relevant sole quotaholder of such such Loan Party approving the terms of, and the transactions contemplated by, and authorizing the execution, delivery and performance of the Amendment, any Loan Documents and related documents to which it is a party, (vi) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of a certified up-to-date excerpt from the commercial register of each such Loan Party and (vii) in case of any Loan Party incorporated under the laws of England and Wales, (A) an up-to-date copy of the PSC Register (within the meaning of section 790C(1) of the Companies Act 2006) and (B) that the borrowing, guaranteeing or security, as appropriate, of the Commitments will not cause any borrowing, guarantee, security or other similar limit binding on it to be exceeded, and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à r.l., (iii) HLF Luxembourg Distribution S.à r.l. and (iv) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Eighth Amendment Effective Date signed by a manager of the relevant Luxembourg Entity, certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Amendment; (C) an electronic true and complete certified certificate of non-registration of judicial decisions or administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) dated as of the date of this Amendment issued by Luxembourg Insolvency Register (Registre de l’insolvabilité, Reginsol) held and maintained by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Amendment; (D) a true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), reprieve from payment (sursis de paiement), general settlement with creditors, administrative dissolution without liquidation (dissolution administrative sans liquidation), judicial reorganisation by mutual agreement (sursis en vue de la conclusion d’un accord amiable extra-judiciaire), judicial reorganisation by collective agreement (réorganisation judiciaire par accord collectif), judicial reorganisation by transfer of assets or activities (réorganisation judiciaire par transfert sous autorité de justice) or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents;

(f) The Administrative Agents shall have received a certificate as of a recent date of the good standing of each of the Loan Parties (other than the Luxembourg Loan Parties or any Loan Parties incorporated in England and Wales or any Loan Parties incorporated in Switzerland) under the laws of its jurisdiction of organization, from the secretary of state (or comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing

 

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certificates dated as of the Eighth Amendment Effective Date, save that, no such bring-down good standing certificate is required for any Loan Party that is a Cayman Islands exempted company where the above recent date of the certificate of good standing initially provided is no earlier than 10 Business Days prior to the Eighth Amendment Effective Date;

(g) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;

(h) The representations and warranties of each Loan Party set forth in SECTION 5(b) of this Amendment are true and correct and the representations and warranties of each Loan Party set forth in SECTIONS 5(a) and (c) of this Amendment are true and correct in all material respects on and as of the Eighth Amendment Effective Date (immediately after giving effect to this Amendment) as if made on as of such date, except in the case of any representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, that, in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”;

(i) The Administrative Agents shall have received a solvency certificate in the form of Exhibit J of the Credit Agreement from a Responsible Officer of the Parent with respect to the solvency of the Parent and its Subsidiaries, on a consolidated basis, after giving effect to the Eighth Amendment;

(j) Know Your Customer and Other Required Information.

(i) The Term Loan B Agent shall have received, no later than one (1) Business Day prior to the Eighth Amendment Effective Date, all documentation and other information about the Loan Parties as has been reasonably requested in writing at least three (3) Business Days prior to the Eighth Amendment Effective Date by the Term Loan B Agent with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;

(ii) At least three (3) Business Days prior to the Eighth Amendment Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to any Lender that requests such Beneficial Ownership Certification in writing at least three (3) Business Days prior to the Eighth Amendment Effective Date;

(k) A written notice of prepayment in respect of the Existing Term Loans and the Existing Revolving Credit Loans in accordance with Section 2.12 of the Credit Agreement;

(l) Evidence that the refinancing of all Existing Term Loans (including payment of all accrued but unpaid interest on such Existing Term Loans) shall have been consummated or, substantially concurrently with the incurrence (or continuation) of the 2024 Refinancing Term B Loans, shall be consummated;

(m) All fees and expenses required to be paid hereunder or pursuant to the Credit Agreement, (including all fees and expenses as separately agreed in writing among the Borrowers

 

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and the Refinancing Arrangers) shall have been paid in full in cash or will be paid in full in cash on the Eighth Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket expenses (including, for the avoidance of doubt, the reasonable and documented fees and expenses of Latham & Watkins LLP and each other counsel to the Refinancing Arrangers) incurred by the Repricing Arranger, the Term Loan B Agent and their respective Affiliates in connection with the execution and delivery of this Amendment;

(n) The Borrower shall have executed and delivered its consent to the Master Assignment as contemplated under this Amendment;

(o) The Borrower shall have, substantially concurrently with the effectiveness of this Amendment, paid to all Non-Consenting Term Loan B Lenders all interest, indemnities, fees, cost reimbursements and other Obligations (other than principal and all other amounts paid to such Non-Consenting Term Loan B Lender under SECTION 2 above), if any, then due and owing to such Non-Consenting Term Loan B Lenders under the Credit Agreement and the other Loan Documents (immediately prior to the effectiveness of this Amendment);

(p) The Parent and each Subsidiary Guarantor which is a Cayman Islands exempted company and a mortgagor under any existing Cayman Share Mortgage (collectively, the “Cayman Mortgagors”) shall have executed and delivered (in a form and substance reasonably satisfactory to the Collateral Agent) an omnibus deed of amendment and confirmation in relation to the existing Cayman Security Documents (the “Cayman Confirmation Agreement”);

(q) (i) A Swiss law governed security confirmation agreement relating to a first-ranking quota pledge agreement originally dated 6 March 2024, and further released and immediately after simultaneously retaken on the Eighth Amendment Effective Date, between Herbalife (UK) Limited, as pledgor and Jefferies Finance LLC as Collateral Agent and pledgee, acting for itself and as direct representative (direkter Stellvertreter) in the name and for the account of all other Secured Parties thereunder as pledgees, Citizens Bank, N.A. as successor Collateral Agent, acting for itself and as direct representative (direkter Stellvertreter) in the name and for the account of all other Secured Parties thereunder as pledgees, represented for all purposes by the Collateral Agent as direct representative (direkter Stellvertreter) and the successor Collateral Agent as direct representative (direkter Stellvertreter) as of the relevant resignation and appointment effective date, regarding a first-ranking pledge of all quotas in HBL Swiss Holdings GmbH; and (ii) Swiss law governed security confirmation agreement relating to a first-ranking quota pledge agreement dated 6 March 2024 between Herbalife International Luxembourg S.àR.L., as pledgor and Jefferies Finance LLC as Collateral Agent and pledgee, acting for itself and as direct representative (direkter Stellvertreter) in the name and for the account of all other Secured Parties thereunder as pledgees, Citizens Bank, N.A. as successor Collateral Agent, acting for itself and as direct representative (direkter Stellvertreter) in the name and for the account of all other Secured Parties thereunder as pledgees, represented for all purposes by the Collateral Agent as direct representative (direkter Stellvertreter) and the successor Collateral Agent as direct representative (direkter Stellvertreter) as of the relevant resignation and appointment effective date, and HBL Swiss Holdings GmbH as pledgor in case of the Restructuring (as defined thereunder), regarding a first-ranking pledge of all quotas in HBL Swiss Services GmbH (foregoing (i) and (ii) collectively, the “Swiss Confirmation Agreements”);

 

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(r) WH Intermediate Holdings Ltd., HBL Holdings Limited and each Loan Party incorporated in England and Wales shall have executed and delivered a security confirmation deed relating to the UK Collateral Documents (the “UK Confirmation Deed”);

(s) The Collateral Agent shall have received (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area,” (x) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (y) evidence of the receipt by the applicable Loan Parties of such notice; (c) if required by Flood Laws, evidence of required flood insurance and (d) any other customary documentation that may be reasonably requested by the Collateral Agent; and

(t) The Collateral Agent shall have received the results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices (including, without limitation, in the United States Patent and Trademark Office and the United States Copyright Office) in which UCC financing statement or other filings or recordations should be made to evidence or perfect security interests in all assets of the US Loan Parties (or would have been made at any time during the five years immediately preceding the Eighth Amendment Effective Date to evidence or perfect Liens on any assets of the US Loan Parties), and such search shall reveal no Liens or judgments on any of the assets of the US Loan Parties, except for Permitted Liens or Liens and judgments to be terminated on the Eighth Amendment Effective Date pursuant to documentation satisfactory to the Collateral Agent.

SECTION 4. Post-Closing Matters. (A) The Borrowers shall, and shall cause each Guarantor to, within 90 days after the Eighth Amendment Effective Date (or such longer period as the Collateral Agent may determine in its reasonable discretion) (and which requirements may be waived by the Collateral Agent in its reasonable discretion):

(a) execute, deliver and file amendments to the Mortgages existing prior to the Eighth Amendment Effective Date in a form acceptable to the Collateral Agent, together with such title endorsements as are reasonably required to give effect thereto in a form acceptable to the Collateral Agent, together with (x) such owner’s title affidavits as may be reasonably required by the title insurer in substantially the form previously accepted by the title insurer with respect to such Mortgages, including therein any so-called “no-change” survey affidavit and (y) any documents required in connection with the recording of such mortgage amendments and issuance of such endorsements;

(b) to the extent reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the amendments to the Mortgages described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent; and

(c) The Borrowers shall and shall cause each Guarantor to within 30 days after the Eighth Amendment Effective Date (or such longer period as the Collateral Agent may determine in its reasonable discretion) execute and deliver to the Collateral Agent supplements to any US IP Security Agreement, or new US IP Security Agreements (in the forms attached to the Security Agreement) as necessary, in each case as required by the Credit Agreement and the other Loan

 

11

Documents. The Collateral Agent is hereby authorized to file such supplements or US IP Security Agreements with the United States Patent and Trademark Office or United States Copyright Office, as applicable.

(d) Concurrently with the effectiveness of the Resignation and Appointment Agreement, the Parent and each other Cayman Mortgagor shall have executed and delivered (in each case in form and substance reasonably satisfactory to the Collateral Agent) (i) an omnibus equitable share mortgage over the shares secured by the existing Cayman Security Documents (and shall have delivered to the Collateral Agent (or any successor Collateral Agent) the ancillary documents required to be delivered pursuant to such omnibus supplementary equitable share mortgage on the date it is entered into), and (ii) an omnibus deed of assignment, assumption and confirmation in respect of, inter alia, the existing Cayman Security Documents;

(e) The Parent shall and each Subsidiary Guarantor which is a Cayman Islands exempted company to deliver to the Collateral Agent (or any successor Collateral Agent) within three Business Days after the Eighth Amendment Effective Date (or such longer period as the Collateral Agent (or any successor Collateral Agent) may determine in its reasonable discretion) copies of (i) its internal register of mortgages and charges (other than such register of HV Holdings Ltd.) and (ii) the register of members of each such Subsidiary Guarantor and HBL Ltd., in each case updated to reflect the documents referred to in this Section 4(e) and any other Collateral Document which is entered into by it prior to such date.

SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, each Loan Party represents and warrants to each of the Lenders party hereto and the Agents that, as of the Eighth Amendment Effective Date:

(a) This Amendment has been duly authorized, executed and delivered by each Loan Party and constitutes, and the Credit Agreement, as amended by this Amendment constitutes, its legal, valid and binding obligation, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, by general equitable principles or by principles of good faith and fair dealing;

(b) The representations and warranties of each Loan Party set forth in Section 3 of the Credit Agreement (as amended by this Amendment) and the other Loan Documents are true and correct in all material respects on and as of the Eighth Amendment Effective Date (immediately after giving effect to this Amendment) as if made on as of such date, except in the case of any representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, that, in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, that the representations and warranties set forth in Section 3.19 of the Credit Agreement are qualified by (i) the information disclosed under the heading “Other Matters” in note 5 (Contingencies) to the condensed consolidated financial statements of Parent and its Subsidiaries in the 10-K for the year ended December 31, 2023 and (ii) information publicly available as of the Eighth Amendment Effective Date, including as disseminated by Reuters or

 

12

other news sources, in respect of charges against former Herbalife officers Yanliang Li, also known as Jerry Li, and Hongwei Yang, also known as Mary Yang for violation of the FCPA; and

(c) After giving effect to this Amendment and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing.

SECTION 6. Borrower’s Consent. For purposes of Section 9.4 of the Credit Agreement (and to the extent such consent is required), each Borrower hereby consents to the Master Assignment with respect to (a) the purchase by each Cash Settlement Term Lender or any of its respective Affiliates and Approved Funds (in each case otherwise being an Eligible Assignee) of the 2024 Refinancing Term B Loans in an aggregate principal amount equal to the Cash Settlement Term Loans (or such lesser amount as allocated by the TLB Refinancing Arrangers) from Citi and becoming a 2024 Refinancing Term Loan B Lender (b) the purchase by each assignee that is previously identified by Citi to the Borrower as the Additional 2024 Term Loan B Lender of the Additional 2024 Term B Loans in an aggregate principal amount equal to such Additional 2024 Term Loan B Lender’s Additional 2024 Term Loan B Commitment from Citi and becoming a 2024 Refinancing Term Loan B Lender, in each case, in connection with the syndication of the 2024 Refinancing Term B Loans.

SECTION 7. Effects on Loan Documents. Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver, release or discharge of any right, power or remedy of any Lender or the Agents under any of the Loan Documents, nor constitute a waiver, release or discharge of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or the Agents under the Loan Documents. Each Borrower and each of the Subsidiary Guarantors acknowledges and agrees that, on and after the Eighth Amendment Effective Date, this Amendment and each of the other Loan Documents to be executed and delivered by the Borrower in connection herewith shall constitute a Loan Document for all purposes of the Amended Credit Agreement. On and after the Eighth Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Amendment, and this Amendment and the Credit Agreement as amended by this Amendment shall be read together and construed as a single instrument. Nothing herein shall be deemed to entitle the Borrowers nor the Subsidiary Guarantors to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement as amended by this Amendment or any other Loan Document in similar or different circumstances.

SECTION 8. Indemnification. Each Borrower hereby confirms that the indemnification provisions set forth in Section 9.3 of the Credit Agreement as amended by this Amendment shall apply to this Amendment and the transactions contemplated hereby.

SECTION 9. Refinancing Arrangers. The Borrowers and the Lenders party hereto agree (a) that the Refinancing Arrangers, acting in such capacity with respect to this Amendment,

 

13

shall be entitled to the privileges, indemnification, immunities and other benefits afforded to the Arrangers under the Amended Credit Agreement and (b) except as otherwise agreed to in writing by the Borrowers and the Refinancing Arranger, the Refinancing Arrangers shall have no duties, responsibilities or liabilities with respect to this Amendment, the Amended Credit Agreement or any other Loan Document.

SECTION 10. Amendments; Execution in Counterparts; Severability.

(a) This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each Borrower, each of the Subsidiary Guarantors, the Lenders party hereto and the Agents; and

(b) To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.

SECTION 11. Reaffirmation. Each of the Reaffirming Parties, as party to the Credit Agreement and certain of the Collateral Documents and the other Loan Documents, in each case as amended, supplemented or otherwise modified from time to time, hereby (i) acknowledges and agrees that all of its obligations under the Credit Agreement, the Collateral Documents and the other Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii) reaffirms (A) each Lien granted by it to the Administrative Agents or the Collateral Agent for the benefit of the Secured Parties and (B) any guaranties made by it pursuant to the Credit Agreement, (iii) acknowledges and agrees that the grants of security interests by it contained in the Collateral Documents shall remain in full force and effect after giving effect to the Amendment and that such security interests secure, and shall continue to secure following the Eighth Amendment Effective Date, the Obligations as described in the following clause (iv) and (iv) acknowledges and agrees that the Obligations include, among other things and without limitation, the prompt and complete payment and performance by the Borrower when due and payable (whether at the stated maturity, by acceleration or otherwise) of principal and interest on, and premium (if any) on, the Loans under the Amended Credit Agreement, including the 2024 Refinancing Term B Loans and the 2024 Refinancing Revolving Credit Loans. Nothing contained in this Amendment shall be construed as substitution or novation of the obligations outstanding under the Credit Agreement or the other Loan Documents, which shall remain in full force and effect, except to any extent modified hereby.

SECTION 12. Agents.

(a) Each party, by signing this Amendment, irrevocably and unconditionally: (i) approves the resignation of Jefferies as the Term Loan B Agent and the Collateral Agent under the Credit Agreement and the other Loan Documents, (ii) appoints Citizens Bank, N.A. as the Term Loan B Agent and as the Collateral Agent, upon execution and effectiveness of and on the terms and conditions set forth in the Resignation and Appointment Agreement, which shall occur substantially concurrently with, but promptly after, the other transactions contemplated under this Amendment, (iii) authorizes and directs Jefferies, Citizens Bank, N.A. and the Loan Parties to

 

14

enter into the Resignation and Appointment Agreement and to make any filings and enter into any documentation, amendments, supplements or other modifications to the existing Loan Documents with respect to the Resignation and Appointment Agreement deemed reasonably necessary or desirable by Jefferies and/or Citizens Bank, N.A. and (iv) waives: (A) any notice requirements as may be applicable under Section 8.9 (Successor Agent) of the Credit Agreement and (B) the requirement, pursuant to Section 8.9 (Successor Agent) of the Credit Agreement, that in the event Jefferies resigns as the Term Loan B Agent and as the Collateral Agent, the Required Lenders and the Required Term Lenders shall appoint from among the Lenders a successor agents for the Lenders, which successor agents shall be subject to written approval by the Borrowers.

For the purposes of this Amendment, “Resignation and Appointment Agreement” means the resignation and appointment agreement to be entered into on or around the date of this Amendment among Jefferies Finance LLC, as resigning Term Loan B Agent and as resigning Collateral Agent, respectively, Citizens Bank, N.A., as successor Term Loan B Agent and successor Collateral Agent, respectively, each of the Borrowers and each of the Subsidiary Guarantors.

(b) Each Revolver Borrower acknowledges and agrees that Rabobank, in its capacity as Revolver Administrative Agent under the Credit Agreement, will serve as Revolver Administrative Agent under this Amendment and under the Amended Credit Agreement.

(c) By their execution hereof, the Required Lenders hereby authorizes and direct Jefferies, in its capacity as the Term Loan B Agent and the Collateral Agent, as applicable, to execute and deliver this Amendment, Senior Pari Passu Intercreditor Agreement, the Cayman Confirmation Agreement, the Swiss Confirmation Agreements, the UK Confirmation Deed and any other document required in connection with this Amendment;

(d) Jefferies hereby acknowledges and accepts that certain Loan Parties will enter into the following documents and provides its consent in respect thereto (including, where applicable, to the creation of any second ranking pledge (gage de second rang) thereunder):

i. Senior Secured Notes Indenture; and

ii. new Luxembourg law governed or Swiss law governed security documents (second ranking) related to the Note Offering.

SECTION 13. Governing Law; Waiver of Jury Trial; Jurisdiction. This Amendment shall be construed in accordance with and governed by the law of the State of New York (without regard to the conflicts of law provisions thereof). EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT. The provisions of Section 9.9 and Section 9.10 of the Credit Agreement as amended by this Amendment are incorporated herein by reference, mutatis mutandis.

 

15

SECTION 14. Headings. Section headings in this Amendment are included herein for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.

SECTION 15. No Novation. By its execution of this Amendment, each of the parties hereto acknowledges and agrees that the terms of this Amendment do not constitute a novation, but, rather, a supplement of the terms of the pre-existing indebtedness and related agreements, as evidenced by the Credit Agreement.

SECTION 16. Counterparts; Electronic Signatures. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF or other electronic means shall have the same force and effect as manual signatures delivered in person. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment or any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

[Remainder of page intentionally left blank.]

 

16

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

 

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

JEFFERIES FINANCE LLC, as Term Loan B Agent and Collateral Agent

 

[Signature Page to Eighth Amendment]

[Signature Page to Eighth Amendment]

Schedule I

Lenders

Schedule 2.01

Part A:

2024 Refinancing Term Loan B Lenders

Exchanging Term Lenders

[On file with the Term Loan B Agent.]

Additional Term Lenders

 

ADDITIONAL 2024 TERM LOAN B LENDER		ADDITIONAL 2024 TERM LOAN B COMMITMENT
Citibank, N.A.		$	337,580,325.37
TOTAL		$	337,580,325.37

Part B:

2024 Refinancing Revolving Credit Lenders

 

2024 REFINANCING REVOLVING CREDIT LENDERS		2024 REFINANCING REVOLVING CREDIT COMMITMENTS (USD)
Coöperatieve Rabobank U.A., New York Branch		$	75,000,000.00
Citibank, N.A.		$	67,000,000.00
Bank of America, N.A.		$	62,500,000.00
Citizens Bank, N.A.		$	62,500,000.00
Mizuho Bank, Ltd.		$	62,500,000.00
Standard Chartered Bank		$	45,500,000.00
Comerica Bank		$	25,000,000.00
TOTAL		$	400,000,000.00

Schedule I to Eighth Amendment

ANNEX A

FORM OF MASTER ASSIGNMENT AND ACCEPTANCE AGREEMENT

FOR HERBALIFE NUTRITION LTD. CREDIT AGREEMENT

This Master Assignment and Acceptance Agreement (the “Master Assignment”) is dated as of the Effective Date set forth below and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended by the First Amendment to Credit Agreement, dated as of December 12, 2019, the Second Amendment to Credit Agreement, dated as of March 19, 2020, the Third Amendment to Credit Agreement, dated as of February 10, 2021, the Fourth Amendment to Credit Agreement, dated as of July 30, 2021, the Fifth Amendment to Credit Agreement, dated as of April 3, 2023, the Sixth Amendment to Credit Agreement, dated as of April 28, 2023, the Seventh Amendment to Credit Agreement, dated as of June 29, 2023, the Eighth Amendment to Credit Agreement, dated as of April 12, 2024 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Master Assignment as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Term Loan B Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity, related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Master Assignment, without representation or warranty by the Assignor.

By purchasing the Assigned Interest, the Assignee agrees that, for purposes of that certain Eighth Amendment to Credit Agreement dated as of April 12, 2024 (the “Eighth Amendment”), by and among the Borrowers, the Subsidiary Guarantors, the 2024 Refinancing Term Loan B Lenders (as defined therein), the 2024 Refinancing Revolving Credit Lenders (as defined therein), each Issuing Bank, the Term Loan B Agent and the Revolver Administrative Agent, it shall be deemed to have consented and agreed to the Eighth Amendment.

 

ANNEX A-1

1.	Assignors: Each person identified on Schedule I hereto

 

2.	Assignees: [•] and is an Affiliate/Approved Fund of [•]

 

3.	Term Loan Borrower: HLF Financing SaRL, LLC

 

4.	Term Loan B Agent: [•]

 

5.

Credit Agreement: The Credit Agreement dated as of August 16, 2018 (as amended by the First Amendment to Credit Agreement, dated as of December 12, 2019, as further amended by the Second Amendment to Credit Agreement, dated as of March 19, 2020, as further amended by the Third Amendment to Credit Agreement, dated as of February 10, 2021, as further amended by the Fourth Amendment to Credit Agreement, dated as of July 30, 2021, as further amended by the Fifth Amendment to Credit Agreement, dated as of April 3, 2023, as further amended by the Sixth Amendment to Credit Agreement, dated as of April 28, 2023, as further amended by the Seventh Amendment to Credit Agreement, dated as of June 29, 2023, as further amended by the Eighth Amendment to Credit Agreement, dated as of April 12, 2024 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms defined therein being used herein as therein defined), among HLF Financing SaRL, LLC a Delaware limited liability company (“TL Borrower”), Herbalife Nutrition Ltd., a Cayman Islands exempted company incorporated with limited liability (“Parent”), Herbalife International Luxembourg S.à R.L., a Luxembourg private limited liability company (société à responsabilité limitée), existing and organized under the laws of Luxembourg, having its registered office at 16, avenue de la Gare, L-1610 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 88.006 (“HIL”), Herbalife International, Inc., a Nevada corporation (“HII” and, together with Parent, TL Borrower and HIL, the “Revolver Borrowers”; the Revolver Borrowers, together with the TL Borrower, are referred to herein as the “Borrowers”), the several banks and other financial institutions or entities from time to time parties thereto as lenders, [•](“[•]”), as administrative agent for the Term Loan B Lenders (together with its successors and permitted assigns in such capacity, the “Term Loan B Agent”) and collateral agent (together with its successors and permitted assigns in such capacity, the “Collateral Agent”), and Coöperatieve Rabobank U.A., New York Branch (“Rabobank”), as an Issuing Bank and as administrative agent for the Revolving Credit Lenders (together with its successors and permitted assigns in such capacity, the “Revolver Administrative Agent” and, together with the Term Loan B Agent, the “Administrative Agents”; the Term Loan B Agent, the Collateral Agent and the Revolver Administrative Agent are referred to herein collectively as the “Agents” and each, an “Agent”).

 

ANNEX A-2

6.	Assigned Interest: As indicated on Schedule I hereto.

Effective Date: [•], 2024

The Assignee agrees to deliver to the Term Loan B Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about each Borrower, the Loan Parties and their Affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

[Signature page follows]

 

ANNEX A-3

The terms set forth in this Master Assignment are hereby agreed to:

 

 

Consented to and Accepted:
[•], as Term Loan B Agent
By:
		Name:
		Title:

Annex A

[Signature Page to Assignment and Assumption]

Consented to:
Term Loan Borrower
HLF FINANCING SaRL, LLC
By:
		Name:
		Title:

Annex A

[Signature Page to Assignment and Assumption]

ANNEX 1

ANNEX 1 TO MASTER ASSIGNMENT

STANDARD TERMS AND CONDITIONS FOR

MASTER ASSIGNMENT

ARTICLE I REPRESENTATIONS AND WARRANTIES.

SECTION 1. Assignor. Each Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Master Assignment and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of the other Loan Parties or their respective Subsidiaries and Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of the other Loan Parties or their respective Subsidiaries and Affiliates or any other Person of any of their respective obligations under any Loan Document or any other instrument or documents furnished pursuant hereto or thereto.

SECTION 2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Master Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements referred to in Section 3.1 or delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Master Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the applicable Administrative Agent or any other Lender, (vi) it is not a Disqualified Lender or an Affiliate of a Disqualified Lender and (viii) attached to the Master Assignment hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on any Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ii) that it appoints and authorizes the Agents to take such action on its behalf and to exercise such powers under the Credit Agreement

 

ANNEX A-I-1

and the other Loan Documents as are delegated to the Agents by the terms thereof, together with such powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

ARTICLE II PAYMENTS. FROM AND AFTER THE EFFECTIVE DATE, THE APPLICABLE ADMINISTRATIVE AGENT SHALL MAKE ALL PAYMENTS IN RESPECT OF THE ASSIGNED INTEREST (INCLUDING PAYMENTS OF PRINCIPAL, INTEREST, FEES AND OTHER AMOUNTS) TO THE ASSIGNOR FOR AMOUNTS WHICH HAVE ACCRUED TO BUT EXCLUDING THE EFFECTIVE DATE AND TO THE ASSIGNEE FOR AMOUNTS WHICH HAVE ACCRUED FROM AND AFTER THE EFFECTIVE DATE.

ARTICLE III GENERAL PROVISIONS. THIS MASTER ASSIGNMENT SHALL BE BINDING UPON, AND INURE TO THE BENEFIT OF, THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THIS MASTER ASSIGNMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT. DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE OF THIS MASTER ASSIGNMENT BY EMAIL OR TELECOPY OR OTHER ELECTRONIC METHOD SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS MASTER ASSIGNMENT. THIS MASTER ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

[Remainder of page intentionally left blank]

 

ANNEX A-I-2

SCHEDULE I to Annex A

Assigned Interest

On File with the Term Loan B Agent

 

Annex A

SCHEDULE I

Exhibit A

Amended Credit Agreement

[Attached]

Exhibit A to SeventhEighth Amendment to Credit Agreement

 

 

CREDIT AGREEMENT

(dated as of

August 16, 2018,(as amended by the First Amendment to Credit Agreement, dated as of December 12, 2019, as further amended by the Second Amendment to Credit Agreement, dated as of March 19, 2020, as further amended by the Third Amendment to Credit Agreement, dated as of February 10, 2021, as further by the Fourth Amendment to Credit Agreement, dated as of July 30, 2021, as further by the Fifth Amendment to Credit Agreement, dated as of April 3, 2023, as further by the Sixth Amendment to Credit Agreement, dated as of April 28, 2023 and, as further by the Seventh Amendment to Credit Agreement, dated as of June 29, 2023 and as further amended by the Eighth Amendment to Credit Agreement, dated as of April 12, 2024)

among

HLF FINANCING SaRL, LLC as Term Loan Borrower,

HERBALIFE INTERNATIONAL, INC., HERBALIFE LTD. (f/k/a HERBALIFE NUTRITION

LTD.), HLF FINANCING SaRL, LLC and, HERBALIFE INTERNATIONAL LUXEMBOURG S.À R.L., as Revolver Borrowers, and

HBL IHB OPERATIONS S.À R.L. as Revolver Borrowers,

THE LENDERS PARTY HERETO,

JEFFERIES FINANCE LLC,

as Term Loan B Agent and Collateral Agent,

COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,

as Term Loan A Agent and Revolver Administrative Agent,

JEFFERIES FINANCE LLC and

CITIBANK N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, BANK OF

AMERICA, N.A., CITIZENS BANK, N.A. and MIZUHO BANK, LTD.,

as Joint Lead Arrangers and Bookrunners for the Term Loan B Facility

and

COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, CITIBANK N.A., BANK OF

AMERICA, N.A., CITIZENS BANK, N.A. and MIZUHO BANK, LTD.,

as SoleJoint Lead Arranger and Bookrunner for the Term Loan A Facility andArrangers

and Bookrunners for the Revolving Credit Facility

and

CITIZENS BANK, N.A., CITICORP NORTH AMERICA, INC., FIFTH THIRD BANK,

and MIZUHO BANK, LTD.

as Joint Lead Arrangers

and

CAPITAL ONE, NATIONAL ASSOCIATION and COMERICA SECURITIES

as Co-Syndication Agents

and

BBVA COMPASS

as Documentation Agent

and

CITIBANK N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, BANK OF

AMERICA, N.A., CITIZENS BANK, N.A. and MIZUHO BANK, LTD.,

as Co-Syndication Agents

and

COMERICA SECURITIES and STANDARD CHARTERED BANK

as Sustainability CoordinatorCo-Managers

and

STANDARD CHARTERED BANK

as Documentation Agent

TABLE OF CONTENTS

 

				Page
SECTION 1.		DEFINITIONS			3
1.1		Defined Terms			3
1.2		Other Definitional Provisions			6975
1.3		Classification of Loans and Borrowings			7177
1.4		Accounting Terms; GAAP			7277
1.5		Pro Forma Calculations			7278
1.6		Classification of Permitted Items			7379
1.7		Rounding			7479
1.8		Currency Equivalents Generally			7479
1.9		Exchange Rates; Currency Equivalents			7480
1.10		Additional Alternative Currencies			7580
1.11		Change of Currency			7682
1.12		Cashless Rolls			82
SECTION 2.		AMOUNT AND TERMS OF COMMITMENTS			7782
2.1		Term Loan Commitments			7782
2.2		Procedure for Term Loan Borrowing			7783
2.3		Repayment of Term Loans			7783
2.4		Revolving Credit Commitments			7884
2.5		Loans and Borrowings			7884
2.6		Requests for Revolving Credit Borrowing			7985
2.7		Letter of Credit			8086
2.8		Funding of Borrowings			8793
2.9		Interest Elections			8894
2.10		Termination and Reduction of Commitments			9096
2.11		Repayment of Revolving Credit Loans; Evidence of Debt			9096
2.12		Prepayment of Loans			9197
2.13		Fees			94101
2.14		Mandatory Prepayments			96102
2.15		Interest			99105
2.16		Alternate Rate of Interest; Benchmark Replacement Setting			100106
2.17		Increased Costs			102109
2.18		Break Funding Payments			104111
2.19		Taxes			104111
2.20		Payments Generally; Pro Rata Treatment; Sharing of Set-offs			110116
2.21		Mitigation Obligations; Replacement of Lenders			111118
2.22		Defaulting Lenders			113120
2.23		Incremental Facilities			115122
2.24		Replacement Facilities			123130
2.25		Extensions of Term Loans and Revolving Credit Commitments			126133
2.26		Permitted Debt Exchanges			130137
2.27		MIRE Events			133140

2.28		Sustainability Linked Pricing Adjustment Amendment			133140
SECTION 3.		REPRESENTATIONS AND WARRANTIES			135143
3.1		Financial Condition			135143
3.2		No Change			136144
3.3		Corporate Existence; Compliance with Law			136144
3.4		Organizational Power; Authorization; Enforceable Obligations			136144
3.5		No Legal Bar			137145
3.6		No Material Litigation			137145
3.7		Ownership of Property; Liens			137145
3.8		Intellectual Property			137145
3.9		Taxes			146
3.10		Federal Reserve Board Regulations			138146
3.11		ERISA			138146
3.12		Investment Company Act			147
3.13		Restricted Subsidiaries			147
3.14		Use of Proceeds			139147
3.15		Environmental Matters			139147
3.16		Accuracy of Information, Etc.			140148
3.17		Collateral Documents			140149
3.18		Solvency			141149
3.19		PATRIOT Act; FCPA; Sanctions			141149
3.20		Broker’s or Finder’s Commissions			150
3.21		Labor Matters			142150
3.22		Representations as to Foreign Obligors			142150
3.23		Luxembourg Specific Representations			143151
SECTION 4.		CONDITIONS PRECEDENT			144152
4.1		Conditions to Closing Date			144152
4.2		Conditions to Each Post-Closing Extension of Credit			149157
SECTION 5.		AFFIRMATIVE COVENANTS			150158
5.1		Financial Statements			150158
5.2		Certificates; Other Information			151159
5.3		Payment of Obligations			152161
5.4		Conduct of Business and Maintenance of Existence, Compliance with Laws, Etc.			161
5.5		Maintenance of Property; Insurance			153162
5.6		Inspection of Property; Books and Records; Discussions			154162
5.7		Notices			154163
5.8		Environmental Laws			155164
5.9		Additional Collateral, Etc.			155164
5.10		Use of Proceeds			163171

 

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5.11		Further Assurances			163172
5.12		Maintenance of Ratings			164172
5.13		Designation of Subsidiaries			164173
5.14		Guarantor Coverage Test			165173
5.15		Post-Closing Matters			165174
SECTION 6.		NEGATIVE COVENANTS			166174
6.1		[Reserved]			166174
6.2		Limitation on Indebtedness			166174
6.3		Limitation on Liens			170179
6.4		Limitation on Fundamental Changes			176184
6.5		Limitation on Disposition of Property			177186
6.6		Limitation on Restricted Payments			180189
6.7		Limitation on Investments			182191
6.8		Limitation on Optional Payments of Junior Debt Instruments			186195
6.9		Limitation on Transactions with Affiliates			187196
6.10		Limitation on Sales and Leasebacks			189198
6.11		Limitation on Negative Pledge Clauses			189198
6.12		Limitation on Restrictions on Restricted Subsidiary Distributions			190199
6.13		Limitation on Lines of Business			191200
6.14		Total Leverage Ratio Financial Covenants			191200
6.15		Modification of Certain Agreements			191201
6.16		Changes in Fiscal Periods			191201
SECTION 7.		EVENTS OF DEFAULT			192201
7.1		Events of Default			192201
7.2		Right to Cure			196205
7.3		Application of Funds			197207
SECTION 8.		THE AGENTS			199208
8.1		Appointment			199208
8.2		Delegation of Duties			199210
8.3		Exculpatory Provisions			199210
8.4		Reliance by the Agents			200211
8.5		Notice of Default			200211
8.6		Non-Reliance on the Agents and Other Lenders			200211
8.7		Indemnification			201212
8.8		The Agent in Its Individual Capacity			201212
8.9		Successor Agent			202213
8.10		Arrangers, Documentation Agent and Syndication Agent.			203214
8.11		Certain ERISA Matters			203214
8.12		Swiss Matters			215
8.13		Administrative Agent May File Proofs of Claim			216

 

iii

SECTION 9.		MISCELLANEOUS			204217
9.1		Notices			204217
9.2		Waivers; Amendments			208220
9.3		Expenses; Indemnity; Damage Waiver			212224
9.4		Successors and Assigns			214226
9.5		Survival			220232
9.6		Counterparts; Integration; Effectiveness			220233
9.7		Severability			220233
9.8		Right of Setoff			221233
9.9		Governing Law; Jurisdiction; Consent to Service of Process			221234
9.10		WAIVER OF JURY TRIAL			222234
9.11		Headings			222235
9.12		Confidentiality			222235
9.13		PATRIOT Act			223236
9.14		Release of Liens and Guarantees; Secured Parties			224236
9.15		No Fiduciary Duty			225238
9.16		Interest Rate Limitation			226239
9.17		Intercreditor Agreements			226239
9.18		Discretionary Guarantors			227240
9.19		Posting of Margin and Collateral			227241
9.20		Judgment Currency			228241
9.21		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			228241
9.22		Collateral			229242
9.23		Swiss Limitations			242
9.24		Acknowledgement Regarding Any Supported QFCs			244

 

SCHEDULES
1.1(A)		Closing Date Guarantors
1.1(B)		Existing Roll-Over Letters of Credit
1.2		Closing Date Mortgaged Property
2.1		Lenders
3.4		Consents, Authorizations, Filings and Notices
3.9		Tax ID Numbers
3.13(a)		Restricted Subsidiaries
3.13(b)		Agreements Related to Capital Stock
5.15		Post-Closing Matters
6.2(d)		Existing Indebtedness
6.3(f)		Existing Liens
6.7(c)		Existing Investments
6.9(b)		Existing Affiliate Transactions
6.11		Existing Negative Pledges

 

iv

EXHIBITS:
A		Form of Security Agreement
B		Form of Compliance Certificate
C		Form of Closing Certificate
D		Form of Perfection Certificate
E		Form of Assignment and Assumption
F-1		Form of Senior/Junior Intercreditor Agreement
F-2		Form of Senior Pari Passu Intercreditor Agreement
G-1		Form of Term A Note
G-2		Form of Term B Note
G-3		Form of Revolving Credit Note
H-1 – H-4		Forms of US Tax Compliance Certificates
I		Form of Borrowing Request
J		Form of Solvency Certificate
K		Form of Notice of Additional Guarantor
L		Form of Sustainability Compliance Certificate[Reserved]
M		Form of Sustainability Proposal[Reserved]

 

v

CREDIT AGREEMENT, dated as of August 16April 12, 20182024, among HLF Financing SaRL, LLC, a Delaware limited liability company (the “Term Loan Borrower”), Herbalife Ltd. (f/k/a Herbalife Nutrition Ltd.), a Cayman Islands exempted company incorporated with limited liability with company number 116838 and with its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, George Town, Grand Cayman, KY1-1104, Cayman Islands (“Parent”), Herbalife International Luxembourg S.à R.L., a Luxembourg private limited liability company (société à responsabilité limitée), existing and organized under the laws of Luxembourg, having its registered office at 16, Avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 88006 (“HIL”), HBL IHB Operations S.à r.l., a Luxembourg private limited liability company (société à responsabilité limitée), existing and organized under the laws of Luxembourg, having its registered office at 16, avenue de la Gare, L-1610 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 257956 (“HBL IHB”), Herbalife International, Inc., a Nevada corporation (“HII” and, together with Parent, the Term Loan Borrower, HBL IHB and HIL, the “Revolver Borrowers”; the Revolver Borrowers, together with the Term Loan Borrower, are referred to herein as the “Borrowers”), the several banks and other financial institutions or entities from time to time parties to this Agreement as lenders, Jefferies Finance LLC (“Jefferies”), as administrative agent for the Term Loan B Lenders (together with its successors and permitted assigns in such capacity, the “Term Loan B Agent”) and as collateral agent (together with its successors and permitted assigns in such capacity, the “Collateral Agent”), and Coöperatieve Rabobank U.A., New York Branch (“Rabobank”), as an Issuing Bank, as sustainability coordinator (together with its successors and permitted assigns in such capacity, the “Sustainability Coordinator”) and as administrative agent for the Term Loan A Lenders (together with its successors and permitted assigns in such capacity, the “Term Loan A Agent” and together with the Term Loan B Agent, the “Term Loan Administrative Agents” and each, a “Term Loan Administrative Agent”) and the Revolving Credit Lenders (together with its successors and permitted assigns in such capacity, the “Revolver Administrative Agent” and, together with the Term Loan Administrative AgentsB Agent, the “Administrative Agents”; the Term Loan Administrative AgentsB Agent, the Collateral Agent, and the Revolver Administrative Agent and the Sustainability Coordinator are referred to herein collectively as the “Agents” and each, an “Agent”).

PRELIMINARY STATEMENTS

The Borrowers, Parent, certain of the Lenders party thereto, Rabobank as the administrative agent for the Term Loan A Lenders (as defined in the Existing Credit Agreement) and Revolver Administrative Agent and Jefferies as the administrative agent for the Term Loan B Lenders and collateral agent are parties to that certain Credit Agreement (together with all exhibits and schedules attached thereto, as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”) dated as of August 16, 2018 (“Closing Date”).

The Borrowers have requested that (i) the, Parent, the Subsidiary Guarantors parties thereto, the Lenders party thereto, Rabobank as the Revolver Administrative Agent and Jefferies as the Term Loan B Agent and the Collateral Agent have entered into that certain Eighth Amendment, dated as of the date hereof, under which (i) the 2024 Refinancing Term

Loan AB Lenders have agreed to refinance and replace in full the Existing Term B Loans and extend credit to the Term Loan Borrower in the form of 2024 Refinancing Term AB Loans on the ClosingEighth Amendment Effective Date in an initial aggregate principal amount of up to $250.0400.0 million pursuant to this Agreement, and (ii) the Term Loan B2024 Refinancing Revolving Credit Lenders have agreed to refinance and replace in full the Existing Revolving Credit Commitments and extend credit to the Term Loan BorrowerRevolver Borrowers in the form of Term B Loans on the Closing Date in an initial2024 Refinancing Revolving Credit Commitments in an aggregate principal amount of up to $750.0400.0 million pursuant to this Agreement and (iii) the Revolving Credit Lenders extend credit to the Revolver Borrowers in accordance with the Revolving Credit Commitments in an initial aggregate principal amount of up to $250.0 million pursuant to this Agreement (with the aggregate principal amount of Revolving Credit Loans permitted to be borrowed on the ClosingEighth Amendment Effective Date).

On the Eighth Amendment Effective Date, HII and the Term Loan Borrower will issue Senior Secured Notes under the Senior Secured Notes Indenture in an aggregate principal amount of $800.0 million. The Borrowers will use the proceeds of the Senior Secured Notes, together with the proceeds of 2024 Refinancing Term B Loans and the cash on hand, to repay in full all Existing Term A Loans.

The parties to the Eighth Amendment have agreed to amend and restate the Existing Credit Agreement as provided in this Agreement.

The Existing Credit Agreement is shall be, and hereby is, amended and restated in its entirety as follows:

On the Closing Date, Parent will enter into the Senior Notes Indenture pursuant to which Parent will issue Senior Notes in an aggregate principal amount of $400.0 million and the proceeds of the Loans, together with the Senior Notes and the cash on hand, will be used in part to repay in full all amounts due or outstanding under the Credit Agreement dated as of February 15, 2017, as amended and restated on March 8, 2018, among Parent, the Term Loan Borrower, HII, HIL, HLF Financing US, LLC, a Delaware limited liability company as the other term loan borrower thereunder, the guarantors party thereto, the lenders party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent for the Term Loan Lenders and Coöperatieve Rabobank U.A., New York Branch, as administrative agent for the Revolving Credit Lenders (the “Existing Credit Agreement”) and such repayment, together with the termination of all commitments thereunder and the release of all liens granted in connection therewith (the “Refinancing”), and to pay Transaction Costs.

The Lenders have indicated their willingness to extend credit on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

2

SECTION 1. DEFINITIONS

1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

“2024 Refinancing Revolving Credit Commitments”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Revolving Credit Facility”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Revolving Credit Lenders”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Revolving Credit Loans”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Term B Loans”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Term Loan B Facility”: has the meaning provided to such term in the Eighth Amendment.

“2024 Refinancing Term Loan B Lenders”: has the meaning provided to such term in the Eighth Amendment.

“2025 Senior Notes”: the unsecured senior notes due 2025 issued pursuant to that certain Indenture, dated as of May 29, 2020, by and among Parent, the guarantors party thereto and MUFG Union Bank, N.A., as trustee, as amended, restated, supplemented or otherwise modified from time to time to the extent not less favorable in any material respect to the Loan Parties or the Lenders than as in effect on the Closing Date.

“20142028 Convertible Notes”: the unsecured Convertible Senior Notes due 20192028 issued pursuant to that certain Indenture, dated as of February 7December 9, 20142022, by and among Parent and UnionU.S. Bank, N.A. Trust Company, National Association, in its capacity as trustee, as amended, restated, supplemented or otherwise modified from time to time to the extent not less favorable in any material respect to the Loan Parties or the Lenders than as in effect on the Closing Date.

“2018 Convertible Notes”: the Convertible Senior Notes due 20242029 Senior Notes”: the unsecured senior notes due 2029 issued pursuant to that certain Indenture, dated as of March 15May 20, 20182021, by and among Parent and MUFG Union BankTerm Loan Borrower, HII, the guarantors party thereto and Citibank, N.A., in its capacity as trustee, as amended, restated, supplemented or otherwise modified from time to time to the extent not less favorable in any material respect to the Loan Parties or the Lenders than as in effect on the Closing Date.

 

3

“ABR”: when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“ABR Term SOFR Determination Day”: has the meaning specified in the definition of “Term SOFR”.

“Accessible Cash”: means all cash and Cash Equivalents that are available to repatriate within a reasonable period of time as determined in good faith by the Parent, to any Loan Party that is formed, organized or incorporated in the United States or the Cayman Islands and solely to the extent that the repatriation of such cash and Cash Equivalents (a) would not result in any significant adverse Tax consequences to Parent or any Subsidiary of Parent, as reasonably determined by Parent or (b) would not be prohibited or restricted by applicable law, rule or regulation, in each case, as determined in good faith by Parent.

“Accounting Change”: as defined in Section 1.4.

“Additional Lenders”: any Eligible Assignee that makes an Incremental Term A Loan, an Incremental Term B Loan or Replacement Term Loan or extends Incremental Revolving Commitments or commitments with respect to Incremental Revolving Increases pursuant to Section 2.23 or 2.24.

“Adjusted LIBO Rate”: with respect to any Eurodollar Borrowing, for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided, that the Adjusted LIBO Rate shall in no event be less than 0.00%.

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) solely with respect to the Revolving Credit Facility, the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor (if any), then Adjusted Term SOFR shall be deemed to be the Floor.

“Administrative Agents”: as defined in the preamble hereto.

“Administrative Questionnaire”: an administrative questionnaire in a form supplied by the applicable Administrative Agent.

“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. For purposes of this Agreement and the other Loan Documents, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates.

“Agency Fee Letters”: collectively, (i) that certain Agency Fee Letter, dated August 16, 2018, by and among, inter alios, the Borrowers and Jefferies and, (ii) that certain Agency Fee Letter, dated August 16April 12, 20182024, by and among the Borrowers and Rabobank and (iii)

 

4

any agency fee letter, dated on or about hereof, by and among the Borrowers and any successors and/or assigns of Jefferies as the Term Loan B Agent and the Collateral Agent.

“Agent”: as defined in the preamble hereto.

“Agent Indemnitee”: as defined in Section 8.7.

“Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term A Loans and/or Term B Loans, as applicable and (ii) the amount of such Lender’s Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the amount of such Lender’s Revolving Credit Exposure.

“Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

“Agreement”: this Credit Agreement.

“Alternate Base Rate”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 1/2 of 1.00%, and (c) the Adjusted Term SOFR that would be calculated as of such day (or, if such day is not a Business Day, as of the next preceding Business Day) in respect of a proposed SOFR Loan with a one-month Interest Period plus 1.00%; provided, that the Alternate Base Rate shall in no event be less than 1.00%. If the applicable Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, the Alternate Base Rate shall be determined without regard to clause (b) of the immediately preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or such Adjusted Term SOFR, respectively.

“Alternative Currency”: each of Euro and each other currency (other than US Dollars) that is approved in accordance with Section 1.10.

“Alternative Currency Equivalent”: at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Revolver Administrative Agent or the applicable Issuing Bank, as applicable, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with US Dollars.

“Applicable Discount”: as defined in Section 2.12(f)(iii).

“Applicable Margin”: (a) with respect to Term A Loans, (i) until delivery of the financial statements for the first full fiscal quarter ending after the Fourth Amendment Effective Date pursuant to Sections 5.1(a) and 5.1(b), the rate per annum set forth in Level I below for the applicable Type of Loan and (ii) thereafter, the rate per annum set forth in the

 

5

table below for the applicable Type of Loan based on the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agents pursuant to Section 5.2(a), as such rate may be adjusted in accordance with the Sustainability Linked Pricing Adjustment[Reserved], (b) with respect to Term B Loans, the rate per annum equal to (i) for ABR Loans, 1.505.75%, and (ii) for SOFR Loans, 2.506.75%, (c) with respect to Revolving Credit Loans, (i) until delivery of the financial statements for the first full fiscal quarter ending after the FourthEighth Amendment Effective Date pursuant to Sections 5.1(a) and 5.1(b), the rate per annum set forth in Level III below and (ii) thereafter, the rate per annum set forth in the table below based on the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agents pursuant to Section 5.2(a), as such rate may be adjusted in accordance with the Sustainability Linked Pricing Adjustment, (d) with respect to any Incremental Facility, the rate or rates per annum set forth in the applicable Incremental Facility Amendment, (e) with respect to any Extended Revolving Credit Commitment or Extended Term Loan, the rate or rates per annum specified in the applicable Extension Offer and (f) with respect to any Replacement Facility, the rate or rates per annum specified in the applicable Replacement Facility Amendment.

 

Level		Total Leverage Ratio		Applicable Margin for (i) Revolving Loans that are Eurodollar Loans or SOFR Loans and (ii) Term A Loans that are SOFR Loans				Applicable Margin for Revolving Loans and Term A Loans that are ABR Loans				Revolving Commitment Fee Rate
I		> 2.504.00:1.00			2.256.50	%			1.255.50	%			0.350.45	%
II		< 2.504:00:1.00, but >  1.503:50:1.00			2.006.25	%			1.005.25	%			0.300.45	%
III		< 1.50:3:50:1.00, but ≥ 2:75:1.00			1.756.00	%			0.755.00	%			0.250.40	%
IV		< 2.75:1.00, but ≥ 2.00:1.00			5.75%				4.75%				0.40%
V		< 2.00x			5.50%				4.50%				0.35%

No change in the Applicable Margin shall be effective until three (3) Business Days after the date on which the Administrative Agents shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 5.2(a) calculating the Total Leverage Ratio. If (x) an Event of Default has occurred and is continuing or (y) the Borrower shall fail to deliver any financial statement or certificate required to be delivered pursuant to Section 5.1 or Section 5.2 within the time periods specified in Section 5.1 or Section 5.2, as applicable, then the Applicable Margin from and including the 60^th day after the end of such fiscal quarter or the 90^th day after the end of such fiscal year, as the case may be, to but not including the date the Borrower delivers to the Administrative Agent such financial statement or certificate shall conclusively equal

 

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the highest possible Applicable Margin provided for in this definition. Within one (1) Business Day of receipt of the applicable information under Section 5.1 or Section 5.2, the Term Loan ARevolver Administrative Agent shall give each Term Loan A Lender and Revolving Credit Lender electronic or telephonic notice (confirmed in writing) of the Applicable Margin in effect from such date.

Notwithstanding anything to the contrary set forth in this Agreement (including the then-effective Total Leverage Ratio), if (i) the Total Leverage Ratio used to determine the Applicable Margin for any period is incorrect as a result of any error, misstatement or misrepresentation contained in any financial statement or certificate delivered pursuant to Section 5.1 or Section 5.2, and (ii) as a result thereof, the Applicable Margin paid to the Lenders and/or the Issuing Banks, as the case may be, at any time pursuant to this Agreement is lower than the Applicable Margin that would have been payable to the Lenders and/or the Issuing Banks, as the case may be, had the Applicable Margin been calculated on the basis of the correct Total Leverage Ratio, the Applicable Margin in respect of such period will be adjusted upwards automatically and retroactively, and the applicable Borrowers shall pay to each Lender and/or each Issuing Bank, as the case may be, such additional amounts (“Additional Amounts”) as are necessary so that after receipt of such amounts such Lender and/or Issuing Bank, as the case may be, receives an amount equal to the amount it would have received had the Applicable Margin been calculated during such period on the basis of the correct Total Leverage Ratio. Additional Amounts shall be payable ten (10) days following delivery by the applicable Administrative Agent to the applicable Borrower(s) of a notice (which shall be conclusive and binding absent manifest error) setting forth in reasonable detail such Administrative Agent’s calculation of the amount of any Additional Amounts owed to the Lenders and/or the Issuing Banks. The payment of Additional Amounts shall be in addition to, and not in limitation of, any other amounts payable by the Borrower pursuant to Section 2.13 and Section 2.15. Additional Amounts shall constitute “Obligations”. The agreements in this paragraph shall survive the payment of the Loans and all other Obligations payable under this Agreement and the termination of the Commitments.

“Applicable Percentage”: with respect to any Revolving Credit Lender, the percentage of the Total Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, after giving effect to any assignments. The Applicable Percentage shall be adjusted appropriately, as determined by the Revolver Administrative Agent, in accordance with Section 2.22(c) to disregard the Revolving Credit Commitment of Defaulting Lenders.

“Applicable Prepayment Percentage”: (a) on or prior to August 10, 2021the first anniversary of the Eighth Amendment Effective Date, 2.00% (b) after the first anniversary of the Eighth Amendment Effective Date, but on or prior to the second anniversary of the Eighth Amendment Effective Date, 1.00%, and (bc) thereafter, 0%.

“Appraisal Period”: any period of twelve consecutive calendar months commencing on May 1 in any calendar year through and including April 30 in the following calendar year.

“Approved Fund”: any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit as its primary

 

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activity and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Approved Sustainability Proposal”: as defined in Section 2.28(b).

“Arrangers”: (i) Jefferies andCitibank, N.A. (“Citi”), Rabobank, Bank of America, N.A. (“BofA”), Citizens Bank, N.A. (“Citizens”) and Mizuho Bank, Ltd. (“Mizuho”), as joint lead arrangers and joint bookrunners for the Term Loan B Facility, and (ii) Rabobank as sole lead arranger and bookrunner for the Term Loan A Facility and, Citi, BofA, Citizens and Mizuho, as joint lead arrangers and bookrunners for the Revolving Credit Facility and (iii) Citizens Bank, N.A. (“Citizens”), Citicorp North America, Inc. (“Citi”), Fifth Third Bank (“Fifth Third”) and Mizuho Bank, Ltd. (“Mizuho”) as joint lead arrangers for the Facilities.

“Asset Sale”: any Disposition of Property or series of related Dispositions of Property pursuant to clause (d)(ii), (j), (k), (o) or (q) of Section 6.5 or Section 6.10 to the extent applicable by any Group Member to any Person (other than a Group Member).

“Assignment and Assumption”: an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.4), and accepted by the applicable Administrative Agent, in the form of Exhibit E-1 or any other form approved by the applicable Administrative Agent and the applicable Borrowers.

“Attributable Indebtedness”: when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to Parent’s then current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.

“Auction”: as defined in Section 2.12(f)(i).

“Auction Amount”: as defined in Section 2.12(f)(i).

“Auction Notice”: as defined in Section 2.12(f)(i).

“Auto Renewal Letter of Credit”: as defined in Section 2.7(c).

“Availability Period”: with respect to the Revolving Credit Facility, the period from and after the Closing Date to but excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the Revolving Credit Commitments.

“Available Basket”: as of any date of determination, an amount equal to (a)(i) $250.0100.0 million plus (ii) (x) an amount equal to 50% of Consolidated Net Income of the Group Members for the period (taken as one accounting period) commencing with JulyApril 1, 20182024 to the end of the fiscal quarter most recently ended in respect of which a Compliance Certificate has been delivered as required hereunder or (y) in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit, plus (iii) the net cash proceeds from the issuance of Capital Stock of, or capital contributions to, Parent after the ClosingEighth

 

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Amendment Effective Date (other than proceeds from the issuance of Disqualified Capital Stock, Excluded Contributions, any Cure Amount and proceeds from capital contributions described in Section 6.2(y)) other than, for the avoidance of any doubt, in connection with the 2014 Convertible Notes and/or the 20182028 Convertible Notes, plus (iv) the net cash proceeds received by Parent after the ClosingEighth Amendment Effective Date from the issuance or sale of convertible or exchangeable Disqualified Capital Stock or debt securities of any Group Member that has thereafter been converted into or exchanged for Qualified Capital Stock other than, for the avoidance of any doubt, in connection with the 2014 Convertible Notes and/or the 20182028 Convertible Notes, plus (v) returns, repayments, interest, profits, distributions, income and similar amounts received in cash or Cash Equivalents by the Group Members in respect of Investments (including Investments made in non-Group Members) made using the Available Basket (such amounts not exceeding the fair market value (as determined in good faith by Parent) of such original Investment), plus (vi) an amount equal to Retained Asset Sale Proceeds, plus (vii) the Investments of the Group Members made using the Available Basket in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into Parent or any of the Restricted Subsidiaries (up to the lesser of (A) the fair market value (as determined in good faith by Parent) of the Investments of Parent and the Restricted Subsidiaries made using the Available Basket in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (B) the fair market value (as determined in good faith by Parent) of the original Investments by Parent and the Restricted Subsidiaries made using the Available Basket in such Unrestricted Subsidiary), plus (viii) any Declined Term Loan A Proceeds and Declined Term Loan B Proceeds, minus (b) the sum of (w) Investments made pursuant to Section 6.7(f)(iii), (x) the amount of Restricted Payments made by Parent pursuant to Section 6.6(d), (y) Investments made pursuant to Section 6.7(s) and (z) Specified Prepayments made pursuant to Section 6.8(ii), in each case to the extent utilizing the Available Basket.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.16(b)(v).

“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation”: 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bankruptcy Code”: Title 11 of the United States Code (11 U.S.C. § 101, et seq.).

“Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding or a corporate statutory arrangement proceeding having

 

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similar effect, is subject to, or any Person that directly or indirectly controls such Person is subject to, a forced liquidation, or winding-up, or has had a receivership, liquidator, provisional liquidator, or has had a receiver, administrative receiver, compulsory manager, conservator, trustee, administrator, custodian, monitor, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it or any substantial part of its assets, or, in the good faith determination of the Term Loan AdministrativeB Agent, has taken any action or the shareholders of such Person have passed a resolution in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment under the laws of any jurisdiction; provided, that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

“Baseline Score”: as defined in Section 2.28(a).

“Benchmark”: initially, (i) with respect to Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, US Dollars, the Term SOFR Reference Rate and (ii) with respect to Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, EURIBOR; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Sections 2.16(b)(i) and 2.16(b)(ii).

“Benchmark Replacement” means with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the applicable Administrative Agent and Borrowers giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the applicable Administrative Agent and the Borrowers giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the

 

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replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (A) the date of the public statement or publication of information referenced therein and (B) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of

 

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such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).

“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16(b) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.16(b).

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as 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”.

“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

“Board of Directors”: with respect to any Person, (i) in the case of any corporation or exempted company, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers of such person or, if there is none, the Board of Directors of the managing member of such Person, (iii) in the case of any partnership, the Board of Directors of

 

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the general partner of such Person, (iv) in any other case, the functional equivalent of the foregoing, and (v) in the case of any Person organized or incorporated under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia, the foreign equivalent of any of the foregoing.

“Borrower Materials”: as defined in Section 9.1.

“Borrowers”: as defined in the preamble.

“Borrowing”: Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans or SOFR Loans, as applicable, as to which a single Interest Period is in effect.

“Borrowing Request”: a request by the applicable Borrowers for a Borrowing substantially in the form of Exhibit I.

“Business Day”: any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Luxembourg are authorized or required by law to remain closed.

“Capital Expenditures”: for any period, with respect to any Person, the aggregate of all expenditures by such Person for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a balance sheet of such Person, it being understood that Capital Expenditures do not include amounts expended to purchase assets constituting an on-going business, including investments that constitute Permitted Acquisitions.

“Capital Lease Obligations”: with respect to any Person, 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 on a balance sheet of such Person under GAAP; and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock or equity of a corporation or exempted company, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding debt securities convertible or exchangeable into any of the foregoing and/or into cash based on the value of the foregoing (including the 2014 Convertible Notes and the 20182028 Convertible Notes).

“Cash Equivalents”: (a) US Dollars; (b) securities and other obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided, that the full faith and credit of such country is pledged in support of those securities) having maturities of not more than one year from the date of acquisition; (c) certificates of deposit, time deposits and eurocurrency time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any Lender or with any domestic or foreign

 

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bank having, or which is a banking subsidiary of a domestic or foreign bank holding company or any branch of a foreign bank in the US having, capital and surplus of not less than $500.0 million (or its foreign currency equivalent); (d) fully collateralized repurchase obligations for underlying securities of the types described in clauses (b) and (c) above or clause (f) below entered into with any financial institution meeting the qualifications specified in clause (c) above; (e) commercial paper and variable or fixed rate notes rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, maturing within one year after the date of acquisition; (f) marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (g) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision thereof rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of one year or less from the date of acquisition; (h) Investments with average maturities of one year or less from the date of acquisition in money market funds rated AAA-(or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); and (i) investment funds investing substantially all of their assets in Cash Equivalents of the kinds described in clauses (a) through (h) of this definition.

In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary, Cash Equivalents shall also include (i) Investments of the type and maturity described in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses and (ii) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (i) and in this paragraph.

Notwithstanding the foregoing, Cash Equivalents shall include, in the case of any Foreign Subsidiary, amounts denominated in the local currency of the jurisdiction of incorporation or formation of such Foreign Subsidiary in addition to those set forth in clause (a) above; provided, that such amounts are held by such Foreign Subsidiary from time to time in the ordinary course of business and not for speculation.

“Cash Management Obligations”: obligations owed by any Loan Party or any of its Restricted Subsidiaries to any Qualified Counterparty in respect of or in connection with Cash Management Services and designated by such Qualified Counterparty and the Borrowers in writing to the Collateral Agent as “Cash Management Obligations”.

“Cash Management Services”: any treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards” or “P-cards”), debit card, credit card, e-payable, cash management and similar services and any automated clearing house transfer of funds.

 

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“Cayman Security Documents”: the following Cayman Islands law governed security agreements:

(i) aneach equitable mortgage over shares made between Parent, as mortgagor, and the Collateral Agent, over 100% of the shares held by Parent in HBL Holdings Ltd.;

(ii) each equitable mortgage over shares made between Parent, as mortgagor, and the Collateral Agent, over 100% of the shares then held by Parent in WH Intermediate Holdings Ltd.;

(iii) each equitable mortgage over shares made between Parent, as mortgagor, and the Collateral Agent, over 100% of the shares held by HBL Holdings Ltd. in WH Intermediate Holdings Ltd.;

(ii) aniv) each equitable mortgage over shares made between WH Intermediate Holdings Ltd., as mortgagor, and the Collateral Agent, over 100% of the shares held by WH Intermediate Holdings Ltd. in HV Holdings Ltd.; and

(iii) anv) each equitable mortgage over shares made between WH Intermediate Holdings Ltd., as mortgagor, and the Collateral Agent, over 100% of the shares held by WH Intermediate Holdings Ltd. in HBL Ltd.; and

(vi) each omnibus equitable share mortgage made among any or all of the foregoing mortgagors, as mortgagors, and the Collateral Agent, over any or all of the foregoing shares held by each such mortgagor,

in each case, as the same may have been or may be assigned from time to time to the Collateral Agent or any successor Collateral Agent.

“CFC”: any “controlled foreign corporation” within the meaning of Section 957 of the Code that is directly or indirectly owned by any member of the Parent Group that is a “United States person,” within the meaning of Section 7701(a)(30) of the Code.

“CFC Debt”: intercompany loans, indebtedness or receivables owed (or treated as owed for U.S. federal income tax purposes) by one or more CFCs.

“Change in Law”: (a) the adoption of any law, rule, regulation or treaty after the date of this AgreementClosing Date or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the date of this AgreementClosing Date or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.17(b), by any lending office of such Lender or Issuing Bank or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this AgreementClosing Date or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder; provided, that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection

 

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Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (ii) 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, in each case shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

“Change of Control”: the occurrence of any of the following events: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act (but (i) excluding any employee benefit plan of Parent or any of its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (ii) excluding from any determination of the amount of Capital Stock beneficially owned by such “person” or “group,” where such person or group includes both Permitted Holders and one or more Persons that are not Permitted Holders, any Capital Stock owned by Permitted Holders, and (iii) excluding any “person” or “group” comprised solely of Permitted Holders) shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital Stock representing more than 35.0% of the ordinary voting power for the election of directors of Parent, measured by voting power rather than number of shares; (b) Parent shall cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of outstanding Capital Stock of each other Borrower free and clear of all Liens (except Permitted Liens); or (c) Parent consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, Parent, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of Parent or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of Parent outstanding immediately prior to such transaction constitutes or is converted into or exchanged for a majority of the outstanding shares of the Voting Stock of such surviving or transferee Person (immediately after giving effect to such transaction); or (d) a Specified Change of Control.

“Class”: (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Credit Lenders, Term Loan Lenders, Incremental Revolving Lenders (of the same tranche), Lenders in respect of Incremental Term A Loans or Incremental Term B Loans (of the same tranche), Extending Revolving Credit Lenders (of the same tranche), Lenders in respect of a Replacement Revolving Credit Facility, Extending Term Lenders (of the same tranche) or Lenders in respect of Replacement Term Loans (of the same tranche), (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Term Loan Commitments, Incremental Revolving Commitments (of the same tranche), commitments in respect of Incremental Term A Loans or Incremental Term B Loans (of the same tranche), Extended Revolving Credit Commitments (of the same tranche), Replacement Revolving Credit Commitments, commitments to make Extended Term Loans (of the same tranche) or commitments to make Replacement Term Loans (of the same tranche) and (c) when used with respect to Loans or Borrowings, refers to whether such Loan or the Loans comprising such Borrowing, are Revolving Credit Loans, Term Loans, Incremental Term A Loans or Incremental Term B Loans (of the same tranche), Extended Term Loans (of the same tranche) or Replacement Term Loans (of the same tranche) or other loans in respect of the same Class of Commitments.

 

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“Closing Date”: has the date on which the conditions precedent set forth in Section 4.1 shall have been satisfied or waived in accordance with Section 9.2meaning given in the Preliminary Statements.

“Co-Managers”: means Comerica Securities and Standard Chartered Bank.

“Code”: the Internal Revenue Code of 1986, as amended.

“Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is created or purported to be created by any Collateral Document.

“Collateral Agent”: as defined in the preamble hereto.

“Collateral Documents”: collectively, the Perfection Certificate, the Security Agreement, any US IP Security Agreements, any Mortgages, the Cayman Security Documents, the Luxembourg Security Documents, the Swiss Security Documents, the Pledge Agreement, the IP Security Agreement, the UK Collateral Documents, any security agreements, pledge agreements, mortgages, deeds to secure debt or deeds of trust, or other similar agreements delivered to the Collateral Agent pursuant to Section 5.9 hereof and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

“Commitment”: with respect to any Lender, a Term Loan A Commitment, Term Loan B Commitment or a Revolving Credit Commitment of such Lender, as the context may require.

“Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with Parent within the meaning of Section 4001 of ERISA or is part of a group that includes Parent and that is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under subsection (b), (c), (m) or (o) of Section 414 of the Code.

“Communications”: as defined in Section 9.1.

“Company Intellectual Property”: as defined in Section 3.8(i).

“Compliance Certificate”: a certificate duly executed by a Responsible Officer, substantially in the form of Exhibit B.

“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods and other technical, administrative or operational matters) that the applicable Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof

 

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by the applicable Administrative Agent in a manner substantially consistent with market practice (or, if the applicable Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the applicable Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the applicable Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated Current Assets”: of Parent at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Group Members at such date, excluding deferred tax assets, assets held for sale, loans permitted to third parties, pension assets, deferred bank fees and derivative financial instruments, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition.

“Consolidated Current Liabilities”: of Parent at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Group Members at such date, excluding, to the extent otherwise included therein, (a) the current portion of any Funded Debt or other long-term liabilities (including Capital Lease Obligations) or interest, (b) revolving loans and letter of credit obligations under the Revolving Credit Facility or any other revolving credit facilities or revolving lines of credit, (c) deferred tax liabilities, and (d) non-cash compensation liabilities and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition.

“Consolidated EBITDA”: with respect to any Person for any period, Consolidated Net Income for such period, adjusted, in each case only to the extent (and in the same proportion) deducted in determining Consolidated Net Income, without duplication, by (x) adding thereto:

(a) Consolidated Interest Expense,

(b) provision for taxes based on income,

(c) depreciation,

(d) amortization (including amortization of deferred fees and accretion of original issue discount);

(e) all other noncash items subtracted in determining Consolidated Net Income (including any noncash charges and noncash equity based compensation expenses related to any grant of stock, stock options or other equity-based awards (including, without limitation, restricted stock units or stock appreciation rights) of such Person or any of its Restricted Subsidiaries recorded under GAAP, noncash charges related to warrants or other derivative instruments

 

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classified as equity instruments that will result in equity settlements and not cash settlements, and noncash losses or charges related to impairment of goodwill and other intangible assets and excluding any noncash charge that results in an accrual of a reserve for cash charges in any future period) for such period,

(f) fees and expenses incurred in connection with the incurrence, prepayment, amendment, or refinancing of Indebtedness (including in connection with (i) the negotiation and documentation of this Agreement and the other Loan Documents and any amendments or waivers thereof and (ii) the on-going compliance with this Agreement and the other Loan Documents); and

(y) subtracting therefrom the aggregate amount of all noncash items and nonrecurring gains or credits, determined on a consolidated basis, to the extent such items were added in determining Consolidated Net Income for such period.

“Consolidated First Lien Debt”: at any date, the sum of (x) the aggregate principal amount of all Consolidated Total Debt under this Agreement and (y) all other Consolidated Total Debt to the extent such debt is secured by any assets of the Parent or any of its Restricted Subsidiaries on an equal priority basis (but without regard to control of remedies) with the Liens securing the Obligations.

“Consolidated First Lien Net Debt”: Consolidated First Lien Debt less Unrestricted Cash as of such date.

“Consolidated Interest Expense”: with respect to any Person for any period, the total consolidated cash interest expense (including that portion attributable to Capital Lease Obligations) of such Person and its consolidated Restricted Subsidiaries for such period (calculated without regard to any limitations on the payment thereof and including commitment fees, letter-of-credit fees, and net amounts payable under any interest rate protection agreements) determined in accordance with GAAP.

“Consolidated Net Income”: with respect to any Person for any period, the consolidated net after tax income (or loss) of such Person and its consolidated Restricted Subsidiaries determined in accordance with GAAP and before any reduction in respect of preferred stock dividends; provided that:

(a) solely to the extent it relates to calculation of the Available Basket (but, for the avoidance of doubt, not the calculation of the Total Net Leverage Ratio) for Restricted Payments permitted by Section 6.6(d), the net income of any Restricted Subsidiary (other than a Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions (unless a like amount may be advanced to the Company or another Restricted Subsidiary as a loan or advance) by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

 

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(b) the net income (or loss) for such period of any Person that is not a Restricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the specified Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) made by such Person that is a not a Restricted Subsidiary to the referent Person or a Restricted Subsidiary thereof in respect of such period;

(c) the cumulative effect of any change in accounting principles shall be excluded;

(d) the income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as discontinued) shall be excluded;

(e) any gain (or loss) realized upon the sale or other disposition of assets of such Person or its consolidated Subsidiaries, other than a sale or disposition in the ordinary course of business, and any gain (or loss) realized upon the sale or disposition of any Capital Stock of any Person shall be excluded;

(f) any impairment charge or asset write-off, including impairment charges or asset write-offs or writedowns related to intangible assets, long-lived assets, investments in debt and equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) or as a result of a change in law or regulation, in each case pursuant to GAAP, shall be excluded;

(g) any non-cash compensation expense realized from employee benefit plans or postemployment benefit plans, grants of stock appreciation, restricted stock or similar rights, stock options or other rights to officers, directors and employees of such Person or any of its Restricted Subsidiaries shall be excluded;

(h) all extraordinary, unusual or non-recurring charges, gains and losses including, without limitation, (i) all restructuring costs, severance costs, one-time compensation charges, transition costs, facilities consolidation, closing or relocation costs, costs incurred in connection with any acquisition prior to or after the Closing Date (including integration costs), including alland (ii)_all fees, commissions, expenses and other similar charges of accountants, attorneys, brokers and other financial advisors related thereto and cash severance payments made in connection with acquisitions, and any expense or charge related to the repurchase of Capital Stock or warrants or options to purchase Capital Stock, together with any related provision for taxes, shall be excluded; provided that amounts added back pursuant to subclause (i) of this clause (h) and all adjustments made pursuant to Section 1.5, in each case, whether added back pursuant to Consolidated EBITDA or Consolidated Net Income, shall not, in the aggregate, exceed 25% of Consolidated EBITDA for any Test Period (determined prior to giving effect thereto);

(i) the effects of purchase accounting adjustments, in amounts required or permitted by GAAP and related authoritative pronouncement, and amortization, write-off or

 

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impairment charges resulting therefrom, in each case from the application of purchase accounting in relation to any acquisition, shall be excluded;

(j) any fees and expenses, including prepayment premiums and similar amounts, incurred during such period, or any amortization thereof for such period, in connection with any equity issuance, acquisition, disposition, recapitalization, Investment, asset sale, issuance or repayment of Indebtedness (including any issuance of notes), financing transaction or amendment or modification of any debt instrument (including, in each case, any such transaction undertaken but not completed), shall be excluded;

(k) any unrealized gains and losses and with respect to Hedge Agreements for such period shall be excluded;

(l) any unrealized gains and losses related to fluctuations in currency exchange rates for such period shall be excluded;

(m) any gains and losses from any early extinguishment of Indebtedness shall be excluded; and

(n) any gains and losses from any redemption or repurchase premiums paid with respect to the notes shall be excluded; and

(o) any write-off or amortization of deferred financing costs (including the amortization of original issue discount) associated with Indebtedness shall be excluded.

“Consolidated Total Assets”: the consolidated total assets of the Group Members, determined in accordance with GAAP, shown on the consolidated balance sheet of Parent as of the end of the most recently ended fiscal quarter prior to the applicable date of determination for which financial statements have been delivered; provided, that, for purposes of calculating “Consolidated Total Assets” under this Agreement, the consolidated assets of the Group Members shall be adjusted to reflect any acquisitions and dispositions of assets outside the ordinary course of business that have occurred during the period from the date of the applicable balance sheet through the applicable date of determination but without giving effect to the transaction being tested under this Agreement.

“Consolidated Total Debt”: at any date, an amount equal to the aggregate outstanding principal amount of all third party Indebtedness of the Group Members at such date that would be classified as a liability on the consolidated balance sheet of Parent, in accordance with GAAP, consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit, Capital Lease Obligations and third party debt obligations evidenced by bonds, notes, debentures or similar instruments; provided, that Consolidated Total Debt shall not include Indebtedness in respect of (i) any letter of credit, except to the extent of obligations in respect of drawn letters of credit unreimbursed for at least three Business Days and (ii) obligations under Hedge Agreements unless such obligations have not been paid when due.

“Consolidated Total Net Debt”: Consolidated Total Debt net of Unrestricted Cash as of such date.

 

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“Consolidated Working Capital”: at any date, the difference of (a) Consolidated Current Assets on such date less (b) Consolidated Current Liabilities on such date.

“Contractual Obligation”: with respect to any Person, (i) the Organizational Documents of such Person and (ii) any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

“Control Investment Affiliate”: with respect to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“Convertible Notes”: the 2014 Convertible Notes and the 2018 Convertible Notes.

“Credit Party”: the Agents or any other Lender.

“Cure Amount”: as defined in Section 7.2(b).

“Cure Notice”: as defined in Section 7.2(b).

“Cure Right”: as defined in Section 7.2(b).

“Cure Specified Date”: with respect to any of the first three fiscal quarters of Parent in a fiscal year, the deadline to deliver quarterly financial statements pursuant to Section 5.1(b), commencing with the fiscal quarter ending March 31, 2019 and with respect to the fourth fiscal quarter of Parent in a fiscal year, the deadline to deliver annual audited financial statements pursuant to Section 5.1(a), commencing with the fiscal quarter ending December 31, 2018.

“Debtor Relief Laws”: the Bankruptcy Code and other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, administrative receivership, insolvency, winding-up, reorganization, restructuring, compromise, arrangement or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, and including the statutory arrangement provisions of any corporations statute having similar effect.

“Declined Asset”: as defined in Section 2.14(g)(i).

“Declined Term Loan A Proceeds”: as defined in Section 2.14(g)(i).

“Declined Term Loan B Proceeds”: as defined in Section 2.14(g)(i).

“Declining Lender”: as defined in Section 2.14(g)(i).

“Default”: any of the events specified in Section 7, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

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“Default Rate”: as defined in Section 2.15(b).

“Defaulting Lender”: any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the applicable Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified Parent, any other Revolver Borrower or the applicable Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the applicable Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans (unless such Lender indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) and participations in then outstanding Letters of Credit under this Agreement (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the applicable Administrative Agent’s and the Revolver Borrowers’ receipt of such certification in form and substance reasonably satisfactory to the applicable Administrative Agent), or (d) admits that it is insolvent or has (or has a direct or indirect parent that has) become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent that has, become subject to a Bail-In Action. This definition is subject to the provisions of the second paragraph of Section 2.22.

“Designated Lender”: as defined in Section 2.8(c).

“Designated Non-Cash Consideration”: the fair market value (as determined in good faith by Parent) of non-cash consideration received by a Group Member in connection with a Disposition pursuant to Section 6.5(j) that is designated as “Designated Non-Cash Consideration” pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash and Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

“Discharge of Secured Obligations”: collectively, (i) the termination of the Commitments and payment in full of all Obligations (other than (A) contingent indemnification and reimbursement obligations that are not then due and payable and (B) Cash Management Obligations and obligations and liabilities under Specified Hedge Agreements as to which arrangements satisfactory to the applicable Qualified Counterparty shall have been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Revolver Administrative Agent and the applicable Issuing Bank shall have been made).

“Discount Range”: as defined in Section 2.12(f)(i).

 

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“Discretionary Guarantor”: as defined in Section 9.18.

“Disposition”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (excluding Liens but including by allocation of assets by division, merger, consolidation or amalgamation, or allocation or assets to any series of a limited liability company); and the terms “Dispose” and “Disposed of” shall have correlative meanings.

“Disqualified Capital Stock”: any Capital Stock which, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable) or upon the happening of any event or condition, (i) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (iii) provides for the scheduled payments or dividends in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is 91 days after the then Latest Maturity Date at the time of issuance, except, in the case of clauses (i) and (ii), if as a result of a change of control event or asset sale or other Disposition or casualty event, so long as any rights of the holders thereof to require the redemption thereof upon the occurrence of such a change of control event or asset sale or other Disposition or casualty event are subject to the prior payment in full of the Obligations; provided, that if such Capital Stock is issued pursuant to a plan for the benefit of employees of any Group Member or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by any Group Member in order to satisfy applicable statutory or regulatory obligations.

“Disqualified Lender”: (i) any bank, financial institution or other institutional lender that has been identified in writing to the Arrangers as a Disqualified Lender on August 16, 2018, (ii) any other Persons who are competitors of any Group Member that are separately identified in writing by Parent or the other Borrowers to the Arrangers (or, after the Closing Date, to the Administrative Agents) from time to time and (iii) in each case of the foregoing clauses (i) and (ii), any of such Person’s Affiliates (other than any bona-fide debt funds) that are either (x) identified in writing by Parent or the other Borrowers to the Administrative Agents from time to time or (y) clearly identifiable as an Affiliate on the basis of such Affiliate’s name; provided, that no such identification after the date hereofClosing Date pursuant to clauses (ii) or (iii) above shall apply retroactively to disqualify and Person that has previously acquired an assignment or participation of an interest in any of the Facilities with respect to amounts of Commitments or Loans previously acquired by such Person. The list of Disqualified Lenders shall be made available by the applicable Administrative Agent to the Lenders upon written request therefor.

“Disqualifying Event”: as defined in Section 1.10(d).

“Documentation Agent”: CompassStandard Chartered Bank d/b/a BBVA Compass.

“Dollar Basket Incremental Debt”: as defined in Section 2.23(a).

 

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“Domestic Subsidiary”: a Restricted Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia, including any Domesticated Foreign Subsidiary.

“Domesticated Foreign Subsidiary”: a Foreign Subsidiary that is also treated as a Domestic Subsidiary by reason of being or treated as being organized under the laws of any political subdivision of the United States.

“Dutch Auction”: an auction of Term Loans conducted pursuant to Section 9.4(g) to allow a Purchasing Borrower Party to prepay Term Loans at a discount to par value and on a non-pro rata basis in accordance with the applicable Dutch Auction Procedures.

“Dutch Auction Procedures”: Dutch auction procedures as set forth in Section 2.12(f) and otherwise as reasonably agreed upon by the applicable Purchasing Borrower Party and the Term Loan AdministrativeB Agent.

“ECF Percentage”: with respect to any Excess Cash Flow Period, 50.075.0%; provided, that (i) the ECF Percentage shall be 50.0% if the Total Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than or equal to 2.90:1.00 and greater than 2.40:1.00, (ii) the ECF Percentage shall be 25.0% if the Total Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than or equal to 3.40:1.00 and greater than 2.40:1.00 and greater than 1.90:1.00 and (iiiii ) the ECF Percentage shall be 0.0% if the Total Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than or equal to 2.401.90:1.00.

“EEA Financial Institution”: (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”: any of the member states of the European Union, Iceland, Liechtenstein and Norway.

“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eighth Amendment”: that certain Eighth Amendment to Credit Agreement, dated as of April 12, 2024, by and among the Borrowers, the Subsidiary Guarantors, the Revolver Administrative Agent, Term Loan B Agent, Collateral Agent and the Lenders party thereto.

“Eighth Amendment Effective Date”: the date on which all of the conditions contained in Section 3 of the Eighth Amendment have been satisfied or waived in accordance with the terms of the Eighth Amendment.

“Eighth Amendment Effective Date Borrowing”: a borrowing consisting of the 2024 Refinancing Term B Loans and 2024 Refinancing Revolving Credit Facility.

 

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“Eighth Amendment Transactions”: (a) the refinancing in full of the Existing Term B Loans (together with any accrued but unpaid interest) with 2024 Refinancing Term B Loans, (b) the refinancing in full of the Existing Term A Loans (together with any accrued but unpaid interest) with the proceeds of 2024 Refinancing Term B Loans and the proceeds of Senior Secured Notes, (c) the refinancing in full of the Revolving Credit Loans (together with any accrued but unpaid interest) outstanding immediately prior to the Eighth Amendment Effective Date and the Existing Revolving Credit Commitments with 2024 Refinancing Revolving Credit Facility and (d) the payment of the Eighth Amendment Transaction Costs.

“Eighth Amendment Transaction Costs”: all fees, costs and expenses incurred by any Group Member in connection with the Eighth Amendment Transactions.

“Eligible Assignee”: (i) any Lender, any Affiliate of a Lender and any Approved Fund, (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course and (iii) subject to the terms of Section 2.12(f) and Sections 9.4(g) and (h), Purchasing Borrower Parties; provided, that “Eligible Assignee” shall not include (w) any Borrower or any Borrower’s Subsidiaries or Affiliates (other than Purchasing Borrower Parties to the extent permitted by, and in accordance with, Section 2.12(f) and Sections 9.4(g) and (h)), (x) any Disqualified Lender, (y) any Lender that is, as of the date of the applicable assignment, a Defaulting Lender or (z) any natural Person.

“EMU Legislation”: the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

“Environmental Laws”: any and all laws, rules, orders, regulations, statutes, ordinances, enforceable guidelines, codes, decrees, or other legally enforceable requirements of any federal, state, territorial, local, municipal, foreign or other Governmental Authority, regulating, relating to or imposing liability associated with or standards of conduct for the protection of the environment, or insofar as it relates to exposure to hazardous or toxic materials.

“Environmental Liability”: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation or compliance with orders and directives, fines, penalties or indemnities), resulting from or based upon (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) human 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.

“Environmental Permits”: any and all permits, licenses, approvals, registrations, and other authorizations of a Governmental Authority required under any Environmental Law.

“ERISA”: the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

 

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“ESG”: as defined in Section 2.28(a).

“ESG Amendment”: as defined in Section 2.28(a).

“ESG Applicable Rate Adjustments”: as defined in Section 2.28(a).

“ESG Pricing Provisions”: as defined in Section 2.28(a).

“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“EURIBOR”: the Euro interbank offered rate for Euros.

“Euro” and “EUR”: the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

“Eurodollar”: when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate. All Revolving Credit Loans denominated in an Alternative Currency must be Eurodollar Loans. No Revolving Credit Loans denominated in US Dollars shall be Eurodollar Loans and no Term Loan A Loans or Term B Loans shall be Eurodollar Loans.

“Event of Default”: any of the events specified in Section 7; provided, that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Excess Cash Flow”: for any Excess Cash Flow Period, the excess, if any, of:

(a) the sum, without duplication, of:

(i) Consolidated Net Income for such period,

(ii) the amount of all non-cash charges (including but not limited to depreciation, amortization and deferred compensation) deducted in arriving at such Consolidated Net Income for such period, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period,

(iii) the amount of the net decrease, if any, in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions or Dispositions by the Group Members completed during such period or the application of purchase or recapitalization accounting) as disclosed and presented on the Parent’s consolidated cash flow statement and determined pursuant to GAAP and then adjusted to comply with the definitions of Consolidated Current Assets and Consolidated Current Liabilities,

(iv) the aggregate net amount of non-cash loss on the Disposition of Property by the Group Members during such period (other than Dispositions in

 

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the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, and

(v) the amount by which the tax expenses deducted in determining Consolidated Net Income for such period exceeds the amount of cash taxes paid or tax reserves set aside or payable (without duplication) in such period, minus

(b) the sum, without duplication, of:

(i) the amount of (A) all non-cash credits and gains included in arriving at Consolidated Net Income for such period (excluding any such non-cash credits and gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income in any prior period) and the amount of all cash expenses, charges and losses excluded from Consolidated Net Income for such period by virtue of the definition thereof and, (B) all amounts included in Consolidated Net Income pursuant to the last paragraph of the definition thereof, to the extent not received in cash during such period, and (C) all extraordinary, unusual or non-recurring cash charges included in arriving at Consolidated Net Income for such period in accordance with the definition thereof,

(ii) the aggregate amount actually paid by the Group Members in cash during such fiscal year on account of Capital Expenditures to the extent funded with Internally Generated Cash Flow,

(iii) the aggregate amount of all principal payments of Indebtedness (other than payments and amounts constituting “Indebtedness” under clause (g), (h) or (i) of the definition thereof), payments of earn-out obligations, and the principal component of payments in respect of Capital Lease Obligations (but (x) excluding optional prepayments of the Term Loans and Revolving Credit Loans made pursuant to Section 2.12(a) (in each case, included in the Optional Prepayment Amount) and (y) excluding mandatory prepayments of the Term Loans made pursuant to Section 2.14) of the Group Members made during such period (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), to the extent funded with Internally Generated Cash Flow,

(iv) the amount of the net increase, if any, in Consolidated Working Capital for such period (other than any such increases arising from acquisitions or Dispositions by the Group Members completed during such period or the application of purchase or recapitalization accounting) as disclosed and presented on the Parent’s consolidated cash flow statement and determined pursuant to GAAP and then adjusted to comply with the definitions of Consolidated Current Assets and Consolidated Current Liabilities,

(v) the aggregate net amount of non-cash gain on the Disposition of Property by the Group Members during such period (other than Dispositions in the

 

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ordinary course of business), to the extent included in arriving at such Consolidated Net Income,

(vi) cash payments made during such period in respect of long-term liabilities (other than amounts constituting “Indebtedness” under clause (g), (h) or (i) of the definition thereof and amounts covered by clause (b)(iii) (above)) of the Group Members to the extent such payments were not expensed during such period or are not deducted in determining Consolidated Net Income, to the extent funded with Internally Generated Cash Flow,

(vii) the aggregate amount actually paid by the Group Members in cash during such period on account of Investments (including acquisitions) permitted by Section 6.7(d), (f), (h), (l), (q), (r), (s) (solely to the extent made in reliance on clause (a)(i), (a)(v) or (a)(vii) of the definition of Available Basket (and in the cases of clauses (a)(v) and (a)(vii), solely to the extent such amounts are included in the calculation of Consolidated Net Income for such period)), (t), (u), (x), (z)or (ee), in each case to the extent funded with Internally Generated Cash Flow,

(viii) the aggregate amount actually paid by the Group Members in cash during such period on account of Restricted Payments permitted by Section 6.6(b), (d) (solely to the extent made in reliance on (x) clause (a)(i), (a)(v) or (a)(vii) of the definition of Available Basket (and in the cases of clauses (a)(v) and (a)(vii), solely to the extent such amounts are included in the calculation of Consolidated Net Income for such period)), (e) (solely to the extent paid to a Person other than Parent or a Restricted Subsidiary), (h) (but not in respect of transactions permitted by Section 6.7(r)), (j), (n) or (o) in each case to the extent funded with Internally Generated Cash Flow,

(ix) the aggregate amount of mandatory prepayments made pursuant to Section 2.14, with the proceeds of Asset Sales and Recovery Events during such year to the extent such proceeds are included in the calculation of such Consolidated Net Income for such period,

(x) the aggregate amount of (A) purchases or buybacks of Term Loans pursuant to a Dutch Auction in accordance with Section 9.4(g) and (B) any prepayments, repayments, refinancing, substitutions or replacements of any portion of the Term Loans of any Non-Consenting Lender pursuant to Section 2.21(c)(ii),

(xi) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Parent and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness, to the extent not deducted in determining Consolidated Net Income,

(xii) the amount of cash taxes (including withholding taxes) paid or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period,

 

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(xiii) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Parent or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Investments (including acquisitions) or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of Parent following the end of such period (such period, the “Next Excess Cash Flow Period”); provided, that, to the extent the aggregate amount of Internally Generated Cash Flow actually utilized to finance such Investments or Capital Expenditures during such Next Excess Cash Flow Period is less than the Contract Consideration, or the amount actually paid during such Next Excess Cash Flow Period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Next Excess Cash Flow Period; provided, further, that no deduction shall be taken under clause (b)(ii) or (b)(vi) of this definition of Excess Cash Flow for the Next Excess Cash Flow Period with respect to the aggregate amount of Internally Generated Cash Flow actually utilized or paid during such Next Excess Cash Flow Period in respect of Contract Consideration previously deducted pursuant to this clause (b)(xiii),

(xiv) the aggregate amount of expenditures (other than those constituting Restricted Payments or Investments) actually made by the Group Members in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period or any previous period and are financed with Internally Generated Cash Flow and not by utilizing the Available Basket (except for amounts received by the Group Members in respect of Investments funded by utilizing the Available Basket); provided, that, if Consolidated Net Income is reduced in any subsequent period by an expense or charge in respect of such cash expenditure, Excess Cash Flow shall be increased by the amount of such expense or charge in such subsequent period,

(xv) the aggregate amount of deferred compensation paid in cash during such period, and

(xvi) the amount of cash paid during such period to the applicable taxing authorities when directly withholding shares from employee equity award exercises (such as stock options and stock appreciation rights) for tax withholding purposes.

“Excess Cash Flow Application Date”: as defined in Section 2.14(c).

“Excess Cash Flow Period”: (x) prior to the Eighth Amendment Effective Date, each fiscal year of Parent, commencing with the fiscal year ending December 31, 2019 and (y) on and after the Eighth Amendment Effective Date, each fiscal year of Parent, commencing with the fiscal year ending December 31, 2025.

“Exchange Act”: the Securities Exchange Act of 1934.

 

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“Exchange Rate”: on any day, and subject to Section 1.8, with respect to any currency (the “Initial Currency”), the rate at which such currency may be exchanged into another currency (the “Exchange Currency”), as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for the Initial Currency; in the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the applicable Administrative Agent (in consultation with Parent and the other Borrowers), or, in the absence of such available service, such Exchange Rate shall instead be the arithmetic average of the exchange rates of the applicable Administrative Agent in the market where its foreign currency exchange operations in respect of the Initial Currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of the Exchange Currency for delivery two Business Days later; provided, that if at the time of any such determination, no such exchange rate can reasonably be quoted, the applicable Administrative Agent may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.

“Excluded Assets”: the collective reference to:

(a) any interest in leased real property (including any leasehold interests in real property) (it being agreed that no Loan Party shall be required to deliver landlord lien waivers, estoppels, bailee letters or collateral access letters) and any agreement or arrangement (including any sale and purchase agreement, call option agreement, assignment, lease agreement or otherwise) relating to the acquisition of (either directly or indirectly) any interest in leased real property (including any leasehold interests in real property);

(b) any fee interest (including, for the avoidance of doubt, any freehold interest) in real property (x) located outside of the United States or (y) that is not Material Real Property;

(c) any motor vehicles and any other assets subject to a certificate of title (other than proceeds thereof);

(d) Letter-of-Credit Rights (other than to the extent such rights can be perfected by filing a UCC-1 financing statement or by a similar filing in any relevant US jurisdiction);

(e) (a) any “margin stock” within the meaning of such term under Regulation U as now and from time to time hereafter in effect and (b) commercial tort claims as to which legal proceedings have not been instituted;

(f) any asset if the granting of a security interest or pledge under the Collateral Documents in such asset would be prohibited by any law, rule or regulation or agreements with any Governmental Authority or would require the consent, approval, license or authorization of any Governmental Authority unless such consent, approval, license or authorization has been received (except to the extent such prohibition or restriction is ineffective under the UCC or any similar applicable law in any relevant jurisdiction and other than proceeds thereof, to the extent the assignment of such proceeds is effective under the UCC or any similar applicable law in any relevant jurisdiction notwithstanding any such prohibition or restriction);

 

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(g) Capital Stock in any joint venture or Restricted Subsidiary that is not a domestic Wholly Owned Subsidiary, to the extent that granting a pledge of or a security interest in such Capital Stock under the Collateral Documents would not be permitted by the terms of such joint venture or such Restricted Subsidiary’s Organizational Documents;

(h) assets to the extent a security interest in such assets could result in a material adverse tax consequence to Parent or any of its Subsidiaries as reasonably determined by the Borrowers in consultation with the Collateral Agent;

(i) in the case of security for the Obligations of the Term Loan Borrower and HII, (i) voting equity interests constituting an amount greater than 65.0% of the outstanding voting and 100.0% of the outstanding non-voting equity interests of any Restricted Subsidiary that is a CFC or a Foreign Holding Company, (ii) voting equity interests constituting an amount greater 65.0% of the outstanding voting and 100.0% of the outstanding non-voting equity interests of any Restricted Subsidiary that is an entity disregarded as separate from its owner under Treasury Regulations Section 301.7701-3 that owns an interest in a CFC or a Foreign Holding Company and/or CFC Debt and (iii) CFC Debt; provided, however, that this clause (i) shall not apply if, as a result of any change in law after the date hereofClosing Date, the provision of such security no longer would cause any material adverse U.S. federal income tax consequences to the Parent or any of its Subsidiaries under Section 956 of the Code by more than a de minimis amount;

(j) any foreign Intellectual Property that is of de minimis value;

(k) (i) any lease, license or other agreement relating to a purchase money obligation, capital lease or sale/leaseback, or any Property being leased or purchased thereunder, or the proceeds or products thereof and (ii) any Property, license or other agreement not referred to in clause (i) (or any rights or interests thereunder), in each case, to the extent that a grant of a security interest therein under the Loan Documents would violate or invalidate such lease, license or agreement (including any agreement governing such Property) or create a right of termination in favor of any other party thereto (other than a Loan Party) (except to the extent such restriction is ineffective under the UCC and any similar law in any relevant jurisdiction and other than proceeds and products thereof, to the extent the assignment of such proceeds and products is expressly deemed effective under the UCC and any similar law in any relevant jurisdiction notwithstanding any such restriction);

(l) assets in circumstances where the Term Loan B Agent, Revolver Administrative AgentsAgent and the Borrower reasonably agree that the cost of obtaining or perfecting a security interest under the Loan Documents in such assets is excessive in relation to the benefit to the Lenders afforded thereby;

(m) any United States intent-to-use trademark applications or intent-to-use service mark applications to the extent and for so long as the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of, a Loan Party’s right, title or interest therein or any trademark or service mark registration issued as a result of such application under applicable Federal law;

 

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