1) ALERT Finance JANUARY 2016 The Anti-Cookson Clause Revisited: A Useful Tool for Lien Restrictions by Anthony Pirraglia, Partner In any secured financing, lenders are concerned about issuer’s principal bank credit agreement. The Model their liens being primed. This is of particular concern Form has now expanded the protection to “Material where the financing permits, as many financings Credit Facilities” which include any future credit facility often do, the incurrence of additional secured debt evidencing indebtedness for borrowed money above a by the borrower or issuer. While there are a number to-be-negotiated threshold. of restrictions that can be added to the financing documentation to guard against the borrower or issuer creating debt that is senior to a noteholder’s existing debt, the private placement market has moved toward the use of the so-called anti-Cookson clause. The anti-Cookson clause prevents the issuer from using secured debt availability in the lien basket to secure obligations arising under the issuer’s Material Credit Facilities without equally and ratably securing the notes under the note agreement. Even though the market The anti-Cookson clause began to appear in note had its wake-up call with respect to lien protection, purchase agreements after the restructuring of Cookson noteholders must remain vigilant and ensure that the Group PLC, in which Cookson Group granted security anti-Cookson protection appears in the documentation and guarantees to its banks under its permitted lien and is not negotiated away. It is an important protection basket without the consent of the holders of the private for the noteholders and should be included in every note placement notes it had issued. The Cookson Group’s purchase agreement that permits the incurrence by the private placement note documentation permitted issuer of any additional debt. Below are samples of the additional debt but failed to provide that such debt could anti-Cookson provision: not be senior to the existing notes held by the holders. n  — A (k) in addition to the Liens permitted by the To address this potentially disastrous result, an anti- preceding subparagraphs (a) through (_), inclusive, Cookson provision was added to private placement of this Section [__], Liens securing Priority Debt of the documentation so that issuers retain the flexibility Company and its Restricted Subsidiaries, provided to incur additional secured bank debt while holders of notes are not subordinated to that debt.1 Initially, the anti-Cookson provision was intended to allow noteholders to maintain parity with lenders under the Los Angeles New York Chicago Nashville 1  he private placement market first added anti-Cookson protection to the T Model Form for domestic issuers in the discussion draft of April 2011 and modified the provision into its current form in October 2012. This publication may constitute “Attorney Advertising” under the New York Rules of Professional Conduct and under the law of other jurisdictions. Washington, DC Beijing Hong Kong www.loeb.com 

2) that such Priority Debt shall be permitted by a Material Principal Credit Facility shall not the limitations set forth in Section [priority debt be permitted under the Lien Basket unless covenant] at the time that the Lien securing the Indebtedness of the Obligors under this such Priority Debt is created, provided further, Agreement (including, without limitation, no Lien pursuant to this Section [__] shall the Guaranteed Obligations) and the Notes, secure the Bank Credit Facility, any Additional is equally and ratably secured with all such Company Credit Facility or any Subsidiary Indebtedness so secured under the Principal Credit Facility or, in each case, guaranties by Credit Facility pursuant to documentation the Company or any Restricted Subsidiary in form and substance satisfactory to the in respect thereof, unless the Notes are also Required Holders. secured equally and ratably pursuant to an agreement reasonably satisfactory to the Required Holders. n  B For more information about the anti-Cookson clause and other lien restrictions, please contact Anthony Pirraglia (212.407.4146 or apirraglia@loeb.com) or any — To the extent that Liens and other member of Loeb & Loeb’s Finance Practice Group. encumbrances in paragraphs [__] through [__] above do not secure obligations (including This alert is a publication of Loeb & Loeb and is intended to provide information on recent legal developments. This alert does not create or Indebtedness) exceeding at any time [__]% of Consolidated Net Book Value (the “Lien Basket”); continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations. © 2016 Loeb & Loeb LLP. All rights reserved. provided however that Liens and other encumbrances securing Indebtedness under Loeb & Loeb’s Finance Practice ROBERT BACA rbaca@loeb.com 310.282.2115 WILLIAM M. HAWKINS whawkins@loeb.com 212.407.4126 cbajak@loeb.com 310.282.2024 NANCY S. JACOBSON njacobson@loeb.com 312.464.3160 DANIEL B. BESIKOF dbesikof@loeb.com 212.407.4129 STAN JOHNSON sjohnson@loeb.com 212.407.4938 ROBERT CALDWELL rcaldwell@loeb.com +852.3923.1115 ljurich@loeb.com 310.282.2211 mcohen@loeb.com 212.407.4103 ADAM I. KNOWLTOWN aknowlton@loeb.com 310.282.2123 ncortese@loeb.com 212.407.4958 STEVEN M. KORNBLAU skornblau@loeb.com 212.407.4217 wcurchack@loeb.com 212.407.4861 DAVID B. KOSTMAN dkostman@loeb.com 212.407.4196 rdudziak@loeb.com 312.464.3148 JC LEE jclee@loeb.com +852.3923.1146 keisenberg@loeb.com 212.407.4123 JOHN J. OBERDORF, III joberdorf@loeb.com 212.407.4190 RICHARD FACUNDO rfacundo@loeb.com 212.407.4178 BRYAN G. PETKANICS bpetkanics@loeb.com 212.407.4130 KENNETH D. FREEMAN kfreeman@loeb.com 212.407.4086 ANTHONY PIRRAGLIA apirraglia@loeb.com 212.407.4146 jfried@loeb.com 212.407.4987 EMILY RAKOWICZ erakowicz@loeb.com 212.407.4867 fagibbs@loeb.com 212.407.4964 DANA ROSENTHAL drosenthal@loeb.com 212.407.4156 SCOTT J. GIORDANO sgiordano@loeb.com 212.407.4104 P. GREGORY SCHWED gschwed@loeb.com 212.407.4815 DOV GOODMAN dgoodman@loeb.com 310.282.2238 PETER G. SEIDEN pseiden@loeb.com 212.407.4070 LOUKIA HARRIS lharris@loeb.com 212.407.4149 PAUL W. A. SEVERIN pseverin@loeb.com 310.282.2059 DIANE HARRIS dharris@loeb.com 212.407.4967 CURTIS W. BAJAK MIRIAM L. COHEN NICHOLE D. CORTESE WALTER H. CURCHACK RALPH P. DUDZIAK KEVIN M. EISENBERG JEFFREY S. FRIED FELICIA ALFORD GIBBS LANCE JURICH