Execution Version JAMES HARDIE INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY as Issuer, the Guarantors named herein and DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee ______________________________________ INDENTURE Dated as of December 13, 2017...
Execution Version XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY as Issuer, the Guarantors named herein and DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee ______________________________________ INDENTURE Dated as of December 13, 2017 ______________________________________ 4.75% Senior Notes due 2025 5.00% Senior Notes due 2028
Page ARTICLE SEVEN TRUSTEE SECTION 7.01. Duties of Trustee. ........................................................................................ 89 SECTION 7.02. Rights of Trustee. ........................................................................................ 90 SECTION 7.03. Individual Rights of Trustee. ...................................................................... 92 SECTION 7.04. Trustee’s Disclaimer. .................................................................................. 92 SECTION 7.05. Notice of Defaults. ...................................................................................... 93 SECTION 7.06. [Reserved]. .................................................................................................. 93 SECTION 7.07. Compensation and Indemnity. .................................................................... 93 SECTION 7.08. Replacement of Trustee. ............................................................................. 94 SECTION 7.09. Successor Trustee by Consolidation, Xxxxxx, etc. ..................................... 95 SECTION 7.10. Eligiblity; Disqualification. ........................................................................ 95 SECTION 7.11. Paying Agents. ............................................................................................ 96 ARTICLE EIGHT AMENDMENT, SUPPLEMENT AND WAIVER SECTION 8.01. Without Consent of Noteholders. ............................................................... 96 SECTION 8.02. With Consent of Noteholders. .................................................................... 98 SECTION 8.03. [Reserved]. .................................................................................................. 99 SECTION 8.04. Revocation and Effect of Consents. ............................................................ 99 SECTION 8.05. Notation on or Exchange of Notes............................................................ 100 SECTION 8.06. Trustee To Sign Amendments, etc. ........................................................... 100 ARTICLE NINE DISCHARGE OF INDENTURE; DEFEASANCE; GUARANTEE SECTION 9.01. Discharge of Indenture. ............................................................................ 101 SECTION 9.02. Legal Defeasance. ..................................................................................... 102 SECTION 9.03. Covenant Defeasance. ............................................................................... 103 SECTION 9.04. Conditions to Legal Defeasance or Covenant Defeasance. ...................... 103 SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust. ...................................................................................... 105 SECTION 9.06. Reinstatement. .......................................................................................... 105 SECTION 9.07. Moneys Held by Paying Agent. ................................................................ 106 SECTION 9.08. Moneys Held by Trustee. .......................................................................... 106 ARTICLE TEN GUARANTEE OF SECURITIES -iii-
Page Exhibit H. Form of Note Guarantee ...........................................................................H-1 Exhibit I. Form of Supplemental Indenture to be Delivered by Subsequent Guarantors ........................................................................................... I-1 -v-
INDENTURE, dated as of December 13, 2017 among Xxxxx Xxxxxx Interna- tional Finance Designated Activity Company, a private designated activity company duly in- corporated under the laws of Ireland (the “Issuer”), the Guarantors (as defined below) and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (the “Trustee”). Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes.
-3- (2) any Taxes that are imposed by reason of the failure of a Holder or ben- eficial owner of Notes to satisfy any certification, identification or other reporting re- quirements concerning the nationality, residence, identity or connection with the Rele- vant Taxing Jurisdiction of such Holder or beneficial owner that is required by appli- cable law, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes, but in each case only to the extent such Holder or beneficial owner is legally eligible to provide such certification or other documentation; provided, howev- er, that the Issuer has delivered a request to such Holder to comply with such require- ments at least 30 days prior to the date by which such compliance is required; (3) any Taxes that would not have been imposed if the presentation of Notes (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later, except to the extent that a Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented within such 30-day peri- od; (4) any Taxes payable otherwise than by deduction or withholding in re- spect of a payment on the Notes or any Note Guarantee; (5) any estate, inheritance, gift, value-added, personal property or similar Taxes; (6) any Tax imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) as of the Issue Date (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any regulations promulgated thereunder or official interpre- tations thereof, any agreement entered into pursuant to Section 1471 of the Code as of the Issue Date (or any amended or successor version described above), or any inter- governmental agreement between the United States and another jurisdiction (and any related law) implementing the foregoing; (7) any Taxes that could have been avoided by the presentation of Notes (where presentation is required) for payment to another paying agent in a member state of the European Union; or (8) any combination of items (1) though (7) above. “Additional Assets” means: (1) any assets (other than Indebtedness and Capital Stock) to be used by Holdings or a Restricted Subsidiary;
-4- (2) the Capital Stock of a Person that becomes a Subsidiary as a result of the acquisition of such Capital Stock by Holdings or another Restricted Subsidiary; or (3) Capital Stock constituting a non-controlling interest in any Person that at such time is a Subsidiary. “Additional 2025 Notes” has the meaning set forth in Section 2.01. “Additional 2028 Notes” has the meaning set forth in Section 2.01. “Additional Notes” has the meaning set forth in Section 2.01. “Adjusted Net Income” means in respect of a Fiscal Year, the consolidated net income for the Parent and any Person which Parent is required to consolidate in its audited financial statements (which shall, for the avoidance of doubt, deduct any tax expense or add any tax credit arising in such Fiscal Year) (but excluding any Excluded Entity) for such Fiscal Year as set out in the Parent’s audited financial statements for such Fiscal Year, adjusted, to the extent included in calculating such consolidated net income, by excluding, without dupli- cation: (a) non-cash provisions (including asbestos provisions) required under GAAP pursuant to which such audited financial statements are prepared with respect to the payments by the Performing Subsidiary to AICF pursuant to the terms of the AFFA; and (b) the portion of consolidated net income allocable to minority interests. “AFFA” means (i) the Amended and Restated Final Funding Agreement dated as of November 21, 2006 (as amended prior to the Issue Date and as further amended, restated or replaced from time to time) between AICF, Xxxxx Xxxxxx Industries SE, Xxxxx Xxxxxx 117 Pty Limited, and any other Performing Subsidiary party thereto from time to time, and the State of New South Wales together with (ii) the Amending Agreement – Parent Guarantee dated as of June 23, 2009 between AICF, the State of New South Wales and the Parent (as amended, restated or replaced from time to time). “Affiliate” of any specified Person means any other Person directly or indirect- ly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
-5- “Agent” means any Registrar, Paying Agent, Depository Custodian, or agent for service or notices and demands. “Agent Members” has the meaning set forth in Section 2.16(a). “AICF” means Asbestos Injuries Compensation Fund Limited in its personal capacity and as trustee for the Asbestos Injuries Compensation Fund. “AICF Payments” means amounts paid by any member of the Consolidated Group (x) to the Performing Subsidiary in connection with the Performing Subsidiary’s pay- ments to AICF pursuant to the terms of the AFFA (including, for the avoidance of doubt, amounts paid in respect of intercompany obligations from time to time owed by a member of the Consolidated Group to the Performing Subsidiary) or (y) under any Guarantee in connec- tion therewith. “amend” means to amend, supplement, restate, amend and restate or otherwise modify; and “amendment” shall have a correlative meaning. “Applicable Treasury Rate” for any Make-Whole Redemption Date means: (i) in connection with the calculation of any Make-Whole Premium with re- spect to any 2025 Note, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to such Make-Whole Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Make-Whole Redemption Date to January 15, 2021; provided, howev- er, that if the period from the Make-Whole Redemption Date to January 15, 2021 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by the Issuer by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given except that if the period from the Make-Whole Redemption Date to January 15, 2021 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used; and (ii) in connection with the calculation of any Make-Whole Premium with re- spect to any 2028 Note, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two business days prior to such Make-Whole Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Make-Whole Redemption Date to January 15, 2023; provided, howev-
-6- er, that if the period from the Make-Whole Redemption Date to January 15, 2023 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by the Issuer by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given except that if the period from the Make-Whole Redemption Date to January 15, 2023 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used “asset” means any asset or property, whether real, personal or mixed, tangible or intangible. “Asset Disposition” means any sale, transfer or other disposition (or series of related sales, transfers or dispositions) by Holdings or any Restricted Subsidiary, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition”), of: (1) any shares of Capital Stock of a Restricted Subsidiary (other than direc- tors’ qualifying shares or shares required by applicable law to be held by a Person oth- er than Holdings or a Restricted Subsidiary); (2) all or substantially all the assets of any division or line of business of Holdings or any Restricted Subsidiary; or (3) any other assets of Holdings or any Restricted Subsidiary outside of the ordinary course of business of Holdings or such Restricted Subsidiary. Notwithstanding the foregoing, none of the following shall be deemed to be an Asset Disposition: (1) a disposition by a Restricted Subsidiary to Holdings or by Holdings or a Restricted Subsidiary to a Restricted Subsidiary, including through any Permitted Reorganization; (2) for purposes of Section 4.09 only, a disposition of all or substantially all the assets of Holdings or the Issuer in compliance with Section 5.01 or a disposi- tion that constitutes a Change of Control pursuant to this Indenture; (3) a sale, contribution, conveyance or other transfer of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction by or to a Receivables Entity in a Qualified Receivables Transaction;
-7- (4) the license, sublicense or cross-license of intellectual property or other intangibles; (5) the lease, assignment or sublease of any real or personal property in the ordinary course of business; (6) any surrender or waiver of contract rights or settlement, release, recov- ery on or surrender of contract, tort or other claims in the ordinary course of business; (7) the granting of Security Interests not prohibited by Section 4.11; (8) the disposition by Holdings or any of its Restricted Subsidiaries in the ordinary course of business of (i) cash and cash equivalents, (ii) inventory and other assets acquired and held for resale in the ordinary course of business, (iii) damaged, worn out or obsolete assets or assets that, in Holdings’ reasonable judgment, are no longer used or useful in the business of Holdings or its Restricted Subsidiaries, or (iv) rights granted to others pursuant to leases or licenses, to the extent not materially inter- fering with the operations of Holdings or its Restricted Subsidiaries; (9) a Restricted Payment that does not violate Section 4.10 or any Invest- ment by Holdings or a Restricted Subsidiary that does not constitute a Restricted Pay- ment; (10) any exchange of assets for assets (including a combination of assets) (which assets may include Equity Interests or any securities convertible into, or exer- cisable or exchangeable for, Equity Interests, but which assets may not include any In- debtedness) of comparable or greater market value or usefulness to the business of Holdings and its Restricted Subsidiaries, taken as a whole, which in the event of an exchange of assets with a fair market value in excess of (a) $50.0 million shall be evi- denced by an Officer’s Certificate and (b) $100.0 million shall be set forth in a resolu- tion approved by at least a majority of the members of the Board of Directors of Hold- ings; provided that Holdings shall apply any cash or cash equivalents received in any such exchange of assets as described in Section 4.09(a); (11) dispositions of receivables in connection with the compromise, settle- ment or collection thereof in the ordinary course of business or in bankruptcy or simi- lar proceedings and exclusive of factoring or similar arrangements; (12) the issuance by Holdings or a Restricted Subsidiary of preferred stock or any convertible securities; (13) any sale of assets received by Holdings or any Restricted Subsidiary upon foreclosure on a Security Interest;
-8- (14) the unwinding of any Hedging Obligations (including sales under for- xxxx contracts); (15) any dispositions to the extent required by, or made pursuant to custom- ary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; (16) the lease or sublease of office space; (17) the abandonment, farm-out, lease, assignment, sub-lease, license or sub-license of any real or personal property in the ordinary course of business; (18) dispositions of property pursuant to casualty events; (19) a single transaction or series of related transactions that involve the dis- position of assets with a fair market value (as determined in good faith by Holdings) of less than $50.0 million; and (20) any sale or disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary. “Attributable Indebtedness,” when used with respect to any Sale and Lease- back Transaction, means, as at the time of determination, the present value (discounted at the weighted average interest rate borne by the Notes, compounded on a semiannual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease in- cluded in any such Sale and Leaseback Transaction. “Bankruptcy Law” means Title 11 of the United States Code, as amended, or any similar federal, state, local or foreign law for the relief of debtors. “Board of Directors” means, with respect to any Person, the board of directors or comparable governing body of such Person or any committee thereof duly authorized to act on behalf of such board of directors (or comparable body). “Business Day” has the meaning set forth in Section 11.07. “Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (ex- cluding normal replacements and maintenance which are properly charged to current opera- tions). For purposes of this definition, the purchase price of equipment that is purchased sim- ultaneously with the trade-in of existing equipment or with insurance proceeds shall be in- cluded in Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of such equipment for the equipment being trad- ed in at such time or the amount of such insurance proceeds, as the case may be.
-9- “Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, in- terests, participations, rights or other equivalents (however designated) of corporate stock; and (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited). “Capitalized Lease” means a lease required to be capitalized for financial re- porting purposes in accordance with GAAP. “Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under a Capitalized Lease, and the amount of such obliga- tion shall be the capitalized amount thereof determined in accordance with GAAP. “Change in Tax Law” means the occurrence of either of the following: (1) any change in, or amendment to, the law (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction, which change or amend- ment was publicly announced and became effective after the Issue Date (or, if the Rel- evant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Is- sue Date, after such later date); or (2) any change in, or amendment to, the official application, administra- tion, or interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction) of a Relevant Taxing Jurisdiction, which change or amendment was publicly announced and became effec- tive after the Issue Date (or, if the Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Issue Date, after such later date). “Change of Control” means the occurrence of any of the following: (1) any Transfer (other than by way of merger or consolidation) of all or substantially all of the assets of the Issuer and its Subsidiaries taken as a whole to any “person” (as defined in Section 13(d) of the Exchange Act) or “group” (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than any Transfer to Hold- ings or one or more Restricted Subsidiaries of Holdings; (2) the adoption of a plan for the liquidation or dissolution of the Issuer (other than in a transaction that complies with Section 5.01);
-10- (3) the Parent, Holdings or any Restricted Subsidiary of Holdings becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Ex- change Act, proxy, vote, written notice or otherwise) that a “person” (as defined above) or “group” (as defined above) has become, directly or indirectly, the “benefi- cial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the voting power of the Voting Stock of the Parent, other than as a result of (i) any transaction where the voting power of the Voting Stock of the Parent imme- diately prior to such transaction constitutes or is converted into or exchanged for a ma- jority of the voting power of the Voting Stock of such beneficial owner (a “Permitted Parent”) or (ii) any merger or consolidation of the Parent with or into any “person” (as defined above) (a “Permitted Person”) or a Subsidiary of a Permitted Person, in each case, if immediately after such transaction no person (as defined above) is the benefi- cial owner (as defined above), directly or indirectly, of more than 50% of the voting power of the Voting Stock of such Permitted Person; or (4) the Parent ceases to own, directly or indirectly, 100% of the voting power of the Voting Stock of the Issuer. For purposes of this definition and any related definition to the extent used for purposes of this definition, a “person” or “group” shall not be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement. “Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline. “Change of Control Offer” has the meaning set forth in Section 4.08(a). “Change of Control Payment” has the meaning set forth in Section 4.08(a). “Change of Control Payment Date” has the meaning set forth in Section 4.08(b). “Commission” means the United States Securities and Exchange Commission. “Consolidated Adjusted EBITDA” means, with respect to any Person for any period: (1) the sum of, without duplication, the amounts for such period, taken as a single accounting period, of: (a) Consolidated Net Income;
-11- (b) Consolidated Interest Expense; (c) Consolidated Income Tax Expense (other than income tax ex- pense (either positive or negative) attributable to extraordinary gains or losses); (d) Consolidated Depreciation and Amortization Expense; and (e) Consolidated Non-cash Charges; less (2) non-cash items increasing Consolidated Net Income for such period, other than (a) the accrual of revenue consistent with past practice, and (b) reversals of prior accruals or reserves for cash items previously excluded in the calculation of Con- solidated Non-cash Charges; provided, that the calculation of Consolidated Adjusted EBITDA shall (i) exclude any Ex- cluded Amounts and (ii) be reduced by the aggregate amount of AICF Payments during such period, in each case, to the extent such exclusion or reduction, as applicable, is not already reflected in the component definitions of the calculation of Consolidated Adjusted EBITDA. In addition: (1) there shall be included in determining Consolidated Adjusted EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property busi- ness or asset acquired by any member of the Consolidated Group during such period (other than any Unrestricted Subsidiary) to the extent not subsequently sold, trans- ferred or otherwise disposed of during such period (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so ac- quired) (each such Person, property, business or asset acquired, or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestrict- ed Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical pro forma basis; and (2) there shall be excluded in determining Consolidated Adjusted EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold, transferred or otherwise disposed of by any member of the Consolidated Group to the extent not subsequently reacquired, in each case, during such period (each such Person (other than an Unrestricted Subsidiary), property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each
-12- case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such disposition) determined on a historical pro forma basis. In calculating Consolidated Adjusted EBITDA for any period, if any Asset Disposition or Asset Acquisition (whether pursuant to a stock or an asset transaction), in each case with a fair market value (as determined in good faith by Holdings) greater than $10.0 million, shall have occurred since the first day of any twelve month period for which Xxxxxxx- dated Adjusted EBITDA is being calculated, such calculation shall give pro forma effect to such Asset Disposition or Asset Acquisition including, for the avoidance of doubt, any In- debtedness incurred in connection with such Asset Disposition or Asset Acquisition. For the purposes of calculating Consolidated Adjusted EBITDA, “Asset Ac- quisition” means any acquisition of property or series of related acquisitions of property that constitutes all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Person; and “Asset Disposition” means any disposition of property or series of related dispositions of property that involves all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Subsidiary. “Consolidated Depreciation and Amortization Expense” means with respect to the Consolidated Group for any period, the total amount of depreciation and amortization ex- pense, including amortization of deferred financing fees, of the Consolidated Group for such period on a consolidated basis and otherwise in accordance with GAAP. “Consolidated Fixed Charge Coverage Ratio” means the ratio of Consolidated Adjusted EBITDA of the Consolidated Group during the most recent four consecutive full fiscal quarters for which consolidated financial statements are available (the “Four-Quarter Period”) ending on or prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “Transaction Date”) to Consolidated Fixed Charges of the Consolidated Group for the Four-Quarter Period. Notwithstanding any- thing to the contrary set forth in the definitions of Consolidated Adjusted EBITDA and Con- solidated Interest Expense (and all component definitions referenced in such definitions), whenever pro forma effect is to be given to the incurrence or repayment of Indebtedness or the issuance or redemption of Preferred Stock, the pro forma calculations shall be determined in good faith by a responsible officer of the Parent or Holdings. For purposes of this definition, Consolidated Adjusted EBITDA and Xxxxxxx- dated Fixed Charges shall be calculated after giving effect on a pro forma basis for the period of such calculation to the incurrence of any Indebtedness or the issuance of any Preferred Stock of any Consolidated Group member (and the application of the proceeds thereof) and any repayment of Indebtedness or redemption of other Preferred Stock (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in the ordi-
-13- nary course of business for working capital purposes pursuant to any revolving credit ar- rangement) occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such incurrence, re- payment, issuance or redemption, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four-Quarter Period. In calculating Consolidated Fixed Charges for purposes of determining the de- nominator (but not the numerator) of this Consolidated Fixed Charge Coverage Ratio: (a) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date (although interest with respect to any Indebtedness for periods while the same was actually outstanding during the re- spective period shall be calculated using the actual rates applicable thereto while the same was actually outstanding); (b) if interest on any Indebtedness actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four-Quarter Period (although interest with respect to any Indebtedness for periods while the same was actually outstanding during the respective period shall be calculat- ed using the actual rates applicable thereto while the same was actually outstanding); and (c) notwithstanding clause (a) or (b) above, interest on Indebtedness de- termined on a fluctuating basis, to the extent such interest is covered by agreements re- lating to Hedging Obligations, shall be deemed to accrue at the rate per annum result- ing after giving effect to the operation of these agreements. “Consolidated Fixed Charges” means, for any period, the sum, without dupli- cation, of (a) Consolidated Interest Expense of the Consolidated Group for such period, plus (b) the product of (x) all dividend payments on any series of Disqualified Equity Interests of the Consolidated Group or any Preferred Stock of any Restricted Subsidiary (other than any such Disqualified Equity Interests or any Preferred Stock held by any Consolidated Group member or to the extent paid in Qualified Equity Interests) for such period, multiplied by (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of the Consolidated Group, ex- pressed as a decimal.
-14- “Consolidated Group” means Holdings and its Restricted Subsidiaries; provid- ed that the Consolidated Group shall exclude, for the avoidance of doubt, (a) any Unrestricted Subsidiary and (b) any Excluded Entity. “Consolidated Income Tax Expense” means, for any period, the provision for federal, state, local and foreign income, franchise, excise, value added and similar taxes based on income, profit, revenue or capital (including any interest and penalties related thereto) of the Consolidated Group for such period as determined on a consolidated basis in accordance with GAAP. “Consolidated Interest Expense” means, for any period, the interest expense of the Consolidated Group for such period, on a consolidated basis, determined in accordance with GAAP (including amortization of original issue discount and deferred financing costs, non-cash interest payments, the interest component of all payments associated with Capital- ized Lease Obligations, capitalized interest, net payments, if any, pursuant to interest rate- related Hedging Obligations and imputed interest with respect to Attributable Indebtedness but excluding write-offs associated with the amendment and restatement or repayment of In- debtedness and excluding, to the extent otherwise included therein, any Excluded Amounts). “Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Consolidated Group for such period as determined in accordance with GAAP (net of the aggregate amount of AICF Payments made during such period), adjusted, to the extent included in calculating such net income, by excluding, without duplication: (1) all extraordinary gains or losses (net of fees and expenses relating to the transaction giving rise thereto); (2) the portion of net income of the Consolidated Group members allocable to minority interests in unconsolidated Persons to the extent that cash dividends or dis- tributions have not actually been received by such Consolidated Group members; (3) gains or losses in respect of any sales of capital stock or asset sales out- side the ordinary course of business (including in a Sale and Leaseback Transaction) by such Consolidated Group members; (4) any gain or loss realized as a result of the cumulative effect of a change in accounting principles; (5) any fees, expenses and other costs incurred or paid (and write-offs rec- orded) in connection with the offering of the Notes, the Unsecured Revolving Credit Facility, or other Indebtedness; (6) nonrecurring or unusual gains or losses;
-15- (7) the net after-tax effects of adjustments in the inventory, property and equipment, goodwill and intangible assets line items in the Consolidated Group’s con- solidated financial statements pursuant to GAAP resulting from the application of pur- chase accounting or the amortization or write-off of any amounts thereof; (8) any fees and expenses incurred (and write-offs recorded) during such period, or any amortization thereof for such period, in connection with any acquisition, investment, asset sale, issuance or repayment or amendment or restatement of indebt- edness, issuance of stock, stock options or other equity-based awards, refinancing transaction or amendment or modification of any debt instrument (including without limitation any such transaction undertaken but not completed); (9) any gain or loss recorded in connection with the designation of a dis- continued operation (exclusive of its operating income or loss); (10) any non-cash compensation or other non-cash expenses or charges aris- ing from the grant of or issuance or repricing of stock, stock options or other equity- based awards or any amendment, modification, substitution or change of any such stock, stock options or other equity-based awards; (11) any expenses or charges (including any break costs, redemption premi- um, make-whole payments, liquidated damages or other penalties) related to any Equi- ty Offering, Asset Disposition, merger, amalgamation, consolidation, arrangement, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including an exchange or refinancing thereof or amendment or modification of any debt instrument or issuance of stock) (whether or not successful); (12) any non-cash impairment, restructuring or special charge or asset write- off or write-down, and the amortization or write-off of intangibles; (13) Excluded Amounts; and (14) any swap break or reset costs incurred and paid as part of any termina- tion of any Hedging Obligations. Consolidated Net Income for such period of any Unrestricted Subsidiary shall be included only to the extent of the amount of dividends or distributions or other payments in respect of equity that are actually paid in cash (or to the extent converted into cash) by such Unrestricted Subsidiary to a Consolidated Group member in respect of such period. Notwithstanding the foregoing, for the purpose of Section 4.10 only (other than clause (c)(4) of the first paragraph of Section 4.10), there shall be excluded from Consolidated
-16- Net Income any income arising from any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (c)(4) of the first paragraph of Section 4.10. “Consolidated Net Tangible Assets” means, in each case, with respect to the Consolidated Group the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (i) all liabilities and liability items, except for In- debtedness payable by its terms more than one year from the date of incurrence thereof (or renewable or extendable at the option of the obligor for a period ending more than one year after such date of incurrence), capitalized rent, capital stock (including redeemable preferred stock) and surplus, surplus reserves and deferred income taxes and credits and other non- current liabilities, and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expenses incurred in the issuance of debt, and other like intangibles which, in each case, in accordance with GAAP would be included on a consolidated balance sheet of the Consolidated Group; provided, that the calculation of Consolidated Net Tangible Assets shall exclude, to the extent otherwise included therein, any Excluded Amounts. “Consolidated Non-cash Charges” means, with respect to the Consolidated Group for any period, the aggregate non-cash expenses of the Consolidated Group and its Subsidiaries (including without limitation any minority interest) reducing Consolidated Net Income for such period, determined on a consolidated basis in accordance with GAAP. “Converted Restricted Subsidiary” has the meaning specified in the definition of “Consolidated Adjusted EBITDA.” “Converted Unrestricted Subsidiary” has the meaning specified in the defini- tion of “Consolidated Adjusted EBITDA.” “Corporate Trust Office” means the designated office of the Trustee at which any time its corporate trust business in relation to this Indenture shall be administered, which at the date hereof is located at 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, At- tention: Corporates Team Deal Manager – Xxxxx Xxxxxx International Finance Designated Activity Company, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer). “Covenant Defeasance” has the meaning set forth in Section 9.03. “Covenant Termination Event” has the meaning set forth in Section 4.15(a).
-17- “Credit Facilities” means one or more debt facilities (including, without limita- tion, the Unsecured Revolving Credit Facility, commercial paper facilities, note purchase agreements or indentures providing for the sale of debt securities), in each case with banks, trustees or other lenders, note holders or investors providing for revolving credit loans, term loans, letters of credit or debt securities (including, without limitation, additional debt securi- ties permitted under any such note purchase agreement or indenture), in each case as any such agreement may be amended, restated, amended and restated, modified, renewed, refunded, replaced or refinanced, in whole or in part, including any agreement(s) extending the maturity of or refinancing (including increasing the amount of available borrowings thereunder or add- ing Holdings or Restricted Subsidiaries of Holdings as borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement(s) or any successor or replacement agreement and whether by the same or any other agent, trustee, lender, investor, note holder or group of lenders, investors or note holders or other creditor or group of creditors. “Default” means (1) any Event of Default or (2) any event, act or condition that, after notice or the passage of time or both, would be an Event of Default. “Depository” means, with respect to the Global Notes, The Depository Trust Company or another Person designated as depository by the Issuer, which Person must be a clearing agency registered under the Exchange Act. “Depository Custodian” means the Trustee as custodian with respect to the Global Notes or any successor entity thereto. “Designated Non-cash Consideration” means the fair market value of non-cash consideration received by Holdings or any of its Restricted Subsidiaries in connection with an Asset Disposition that is designated as “Designated Non-cash Consideration” pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or cash equivalents received in connection with a subsequent sale, redemption or payment of, on or with respect to such Designated Non-cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the ex- tent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in ex- change for consideration in the form of cash or cash equivalents in compliance with Section 4.09. “Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated Adjusted EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (de- termined as if references to the Consolidated Group in the definition of “Consolidated Adjust- ed EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted Subsidi- ary and its Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
-18- “Disqualified Equity Interests” of any Person means any class of Equity Inter- ests of such Person that, by its terms, or by the terms of any related agreement or of any secu- rity into which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the passage of time would be, required to be redeemed by such Person, whether or not at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91 days after the final maturity date of the applicable series of Notes; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any securi- ty into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuer to redeem such Equity Interests upon the occurrence of a Change of Control or an Asset Disposition occurring prior to the 91st day after the final maturity date of the applicable series of Notes shall not constitute Disqualified Equity Interests if the change of control or asset disposition provisions applicable to such Equity Interests are no more fa- vorable to such holders than the provisions of Section 4.08 and Section 4.09, respectively, and such Equity Interests specifically provide that the Issuer will not redeem any such Equity In- terests pursuant to such provisions prior to the Issuer’s purchase of the Notes of such series as required pursuant to Section 4.08 and Section 4.09, respectively. “Dividend Period” has the meaning set forth in clause (g) of the second para- graph of Section 4.10. “Equity Interests” of any Person means (1) any and all shares or other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person, but excluding any debt securities that are convertible into, or exchangeable for, such shares or other interests in such Person. “Equity Offering” means a public or private sale for cash of common stock of Holdings (or any direct or indirect parent company of Holdings to the extent the net cash pro- ceeds therefrom are contributed to Holdings), other than (i) public offerings with respect to common stock of Holdings (or such parent) registered on Form F-4, Form S-4 or Form S-8 or (ii) any sale to any Subsidiary of Holdings.
-19- “Event of Default” has the meaning set forth in Section 6.01. “Excess Proceeds” has the meaning set forth in Section 4.09(c). “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. “Excluded Amounts” means with respect to any Person and its Restricted Sub- sidiaries, without duplication, the total amount of (i) asbestos-related liabilities, assets, in- come, gains, losses and charges, other than AICF Payments, (ii) AICF selling, general & ad- ministrative expenses, (iii) Australian Securities and Investments Commission-related ex- penses, recoveries and asset impairments and (iv) New Zealand product liability expenses in- curred by such Persons for such period on a consolidated basis and otherwise in accordance with GAAP. “Excluded Entities” means AICF (and Asbestos Injuries Compensation Fund Limited in its personal capacity) and each of the following entities: (i) Amaba Pty Limited (ACN 000 387 342), (ii) Amaca Pty Limited (ACN 000 035 512), (iii) ABN 60 Pty Limited (ACN 000 009 263), and (iv) Marlew Mining Pty Limited (formerly known as Asbestos Mines Pty Limited) (ACN 000 049 650). “Fiscal Year” means the fiscal year of the Parent, which at the date hereof ends on March 31. “GAAP” means generally accepted accounting principles set forth in the opin- ions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect from time to time; provided that any leases that are not or would not be characterized as Capitalized Leases under GAAP as in effect on the Issue Date shall not be reclassified as Capitalized Leases and additional liabilities associated with such leases shall not be classified as Indebt- edness as a result of any changes in interpretive releases or literature regarding GAAP. At any time after the Issue Date, Holdings may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, refer- ences herein to GAAP and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided further, any calculation or de- termination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to Holdings’ election to apply IFRS shall remain as previously cal- culated or determined in accordance with GAAP. For purposes of this Indenture, the term “consolidated” with respect to any Person means such Person consolidated with its Restricted Subsidiaries and does not include any Unrestricted Subsidiary.
-20- “Global Note Legend” means the legend substantially in the form set forth in Exhibit D. “Global Notes” has the meaning set forth in Section 2.16(a). “Guarantee” means a guarantee (other than by endorsement of negotiable in- struments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, through letters of credit and reimbursement agreements in re- spect thereof), of all or any part of any Indebtedness. “Guarantee” when used as a verb shall have a corresponding meaning. “Guarantor” means (and shall include, for the avoidance of doubt, any succes- sor Person): (1) Holdings; (2) each Subsidiary that executes and delivers a Note Guarantee pursuant to Section 4.14; and (3) each Subsidiary that otherwise executes and delivers a Note Guarantee, in each case, until such time as such Person is released from its Note Guarantee in accordance with the provisions of this Indenture. “Hedging Obligations” of any Person means the obligations of such Person under swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates, currency exchange rates or commodity prices or availability, either generally or under specific contingencies, and including both physical and financial settlement transac- tions. “Holder” or “Noteholder” means any registered holder, from time to time, of any Notes. “Holding Company” means any Person that does not conduct any material op- erations or own directly any material assets other than the Equity Interests or Indebtedness of any other Person. “Holdings” means Xxxxx Xxxxxx International Group Limited, a private limited company duly incorporated under the laws of Ireland, or its Replacement Entity. “Indebtedness” of any Person at any date means, without duplication: (a) all liabilities, contingent or otherwise, of such Person for borrowed money;
-21- (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all reimbursement obligations of such Person in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; (d) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, except trade payables and accrued expenses incurred by such Person in the ordinary course of business in connection with obtaining goods, materials or services and except obligations to pay a contingent purchase price as long as such obligation remains contingent; (e) the maximum fixed redemption or repurchase price of all Disqualified Equity Interests of such Person (but excluding any accrued but unpaid dividends); (f) all Capitalized Lease Obligations of such Person; (g) all Indebtedness of others secured by a Security Interest on any asset of such Person, whether or not such Indebtedness is assumed by such Person; (h) all Indebtedness of others guaranteed by such Person to the extent of such guarantee; provided that Indebtedness of (i) the Consolidated Group that is guar- anteed by any Consolidated Group member shall only be counted once in the calcula- tion of the amount of Indebtedness of the Consolidated Group on a consolidated basis and (ii) Holdings or the Restricted Subsidiaries that is guaranteed by Holdings or a Restricted Subsidiary shall only be counted once in the calculation of the amount of Indebtedness of Holdings and the Restricted Subsidiaries on a consolidated basis; and (i) all obligations of such Person under conditional sale or other title reten- tion agreements relating to assets purchased by such Person. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above, the maximum liabil- ity of such Person for any such contingent obligations at such date and, in the case of clause (g), the lesser of (a) the fair market value (as determined in good faith by Holdings) of any asset subject to a Security Interest securing the Indebtedness of others on the date that the Se- curity Interest attaches and (b) the amount of the Indebtedness secured. For purposes of clause (e), the “maximum fixed redemption or repurchase price” of any Disqualified Equity Interests that do not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interests as if such Disqualified Equity Interests were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture. For the avoidance of doubt, the obli- gations and liabilities in respect to AICF Payments do not constitute Indebtedness.
-22- “Indenture” means this Indenture as amended, restated or supplemented from time to time. “Initial 2025 Notes” means the $400,000,000 aggregate principal amount of 4.75% Senior Notes due 2025 issued by the Issuer pursuant to this Indenture on the date here- of. “Initial 2028 Notes” means the $400,000,000 aggregate principal amount of 5.00% Senior Notes due 2028 issued by the Issuer pursuant to this Indenture on the date here- of. “Initial Purchasers” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorpo- rated, Commonwealth Bank of Australia, HSBC Securities (USA) Inc., U.S. Bancorp Invest- ments, Inc. and Xxxxx Fargo Securities, LLC. “interest” means interest payable with respect to the Notes. “Interest Payment Date” means the stated maturity of an installment of interest on the Notes. “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Xxxxx’x and a rating equal to or higher than BBB- (or the equivalent) by S&P, in each case with stable outlook, or an equivalent rating by any other Rating Agency. “Investments” means, with respect to any Person, all investments by such Per- son in other Persons (including Affiliates) in the form of loans (including guarantees), ad- vances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, travel and similar advances to officers, employees and consultants made in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors and any prepayments and other credits to suppliers made in the ordinary course of business), purchases or other acquisi- tions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of such Person in the same manner as the other investments included in this definition to the ex- tent such transactions involve the transfer of cash or other property. For purposes of the definition of Unrestricted Subsidiary and Section 4.10, (a) “Investments” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary at the time that such Sub- sidiary is designated an Unrestricted Subsidiary; (b) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by Holdings; and (c) any transfer of Capital Stock that results in an entity which became a Restricted Subsidiary after the Issue Date ceasing to be a
-23- Restricted Subsidiary shall be deemed to be an Investment in an amount equal to the fair mar- ket value (as determined by Holdings in good faith as of the date of initial acquisition) of the Capital Stock of such entity owned by Holdings and the Restricted Subsidiaries immediately after such transfer. “Issue Date” means December 13, 2017. “Issuer” means Xxxxx Xxxxxx International Finance Designated Activity Com- pany or any successor obligor to its obligations under this Indenture and the Notes pursuant to Section 5.01. “Legal Defeasance” has the meaning set forth in Section 9.02. “Legal Holiday” has the meaning set forth in Section 11.07. “Make-Whole Premium” means: (i) with respect to a 2025 Note at any Make-Whole Redemption Date, an amount equal to the greater of (i) 1.0% of the principal amount of such Note and (ii) the ex- cess, if any, of (x) the present value of the sum of the principal amount and premium that would be payable on such Note on January 15, 2021 and all remaining interest payments to and including January 15, 2021 (but excluding any interest accrued to the Make-Whole Re- demption Date), discounted on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a per annum interest rate equal to the Applicable Treasury Rate plus 50 basis points, over (y) the outstanding principal amount of such Note; and (ii) with respect to a 2028 Note at any Make-Whole Redemption Date, an amount equal to the greater of (i) 1.0% of the principal amount of such Note and (ii) the ex- cess, if any, of (x) the present value of the sum of the principal amount and premium that would be payable on such Note on January 15, 2023 and all remaining interest payments to and including January 15, 2023 (but excluding any interest accrued to the Make-Whole Re- demption Date), discounted on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a per annum interest rate equal to the Applicable Treasury Rate plus 50 basis points, over (y) the outstanding principal amount of such Note. “Make-Whole Redemption Date” with respect to a redemption of Notes of any series at the Make-Whole Premium, means the date such redemption is effectuated. “Maturity Date” when used with respect to any Note, means the date on which the principal amount of such Note becomes due and payable as therein or herein provided. “Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its rat- ing agency business.
-24- “Net Available Cash” from an Asset Disposition means cash payments re- ceived therefrom (including any cash payments received by way of deferred payment of prin- cipal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other noncash form), in each case net of: (1) all legal, accounting, investment banking, title and recording tax ex- penses, commissions and other fees (including financial and other advisory fees) and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP, as a consequence of such Asset Disposi- tion; (2) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by appli- cable law, be repaid out of the proceeds from such Asset Disposition; (3) all distributions and other payments required to be made to non- controlling interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and (4) appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets dis- posed in such Asset Disposition and retained by Holdings or any Restricted Subsidiary after such Asset Disposition. “Non-U.S. Person” means a Person who is not a U.S. Person. “Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obli- gations under this Indenture and the Notes, pursuant to the provisions of this Inden- ture. “Notes” means the 2025 Notes and the 2028 Notes issued by the Issuer pursu- ant to this Indenture. The Notes of each series issued on the Issue Date and any Additional Notes of the same series issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including with respect to voting, and unless the context other- wise requires, all references to the Notes of a particular series shall include the Notes of such series issued on the Issue Date and any Additional Notes of such series. Each of the 2025 Notes and the 2028 Notes shall be separate series of Notes for all purposes under this Inden- ture, including, without limitation, waivers, amendments, redemptions and offers to purchase.
-25- “Offer” has the meaning set forth in Section 4.09(c). “Offering Memorandum” means the Offering Memorandum of the Issuer, dat- ed November 29, 2017, relating to the offering of the Notes on the Issue Date. “Officer’s Certificate” means a certificate signed by an Officer of Holdings or the Issuer, as the case may be. “Officers” means, with respect to any Person, the Chairman, President, Chief Executive Officer, Chief Financial Officer, Treasurer, Controller, any Senior Vice President, any Vice President of such Person or any other authorized officer or director of such Person. “Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or counsel to Holdings or any of its Subsidiaries, or other counsel, which is reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for in Section 11.05, if and to the extent required by the provisions thereof. “Parent” means Xxxxx Xxxxxx Industries plc, a public limited company duly in- corporated under the laws of Ireland, and, following any transaction involving a Permitted Parent or Permitted Person, shall instead mean such Permitted Parent or Permitted Person, as the case may be. “Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Guar- antor that ranks pari passu in right of payment with the Notes or the Note Guarantees, as ap- plicable (without giving effect to collateral arrangements). “Paying Agent” has the meaning set forth in Section 2.04. “Payment Default” has the meaning set forth in Section 6.01. “Performing Subsidiary” means any Subsidiary of the Parent primarily liable to make funding payments to AICF under the AFFA, it being understood that the Performing Subsidiary, as of the Issue Date, is Xxxxx Xxxxxx 117 Pty Limited. “Permitted Parent” has the meaning specified in the definition of “Change of Control.” “Permitted Person” has the meaning specified in the definition of “Change of Control.” “Permitted Reorganization” means any amalgamation, merger, plan or scheme of arrangement, exchange offer, business combination, reincorporation, reorganization, con- solidation, continuation, discontinuation, domestication, re-domestication, conversion or simi- lar action (including, without limitation, pursuant to a dissolution, liquidation or winding up),
-26- or a sale, distribution or other disposition of all or substantially all of the assets (or any com- bination thereof), in each case, involving the assets of (including, as applicable, Equity Inter- ests in), Parent and its subsidiaries, including any steps in a plan adopted in good faith by the Board of Directors of the Parent, whether or not such steps occur before, concurrently with or after other steps in such plan (a “Reorganization”) where: (a) all of the assets of (including Equity Interests in) the relevant Subsidiary of the Consolidated Group (but excluding any Holding Companies) continue to be owned directly or indirectly by Xxxxx Xxxxxx International Group Limited (or its Re- placement Entity) in the same or a greater percentage as prior to such Reorganiza- tion, except for: (i) the Equity Interests in any Subsidiary of the Consolidated Group which has been Reorganized with or into another Subsidiary of the Xxxxxxx- dated Group or which has otherwise ceased to exist as a result of such Reor- ganization; or (ii) the assets of (including Equity Interests in) Subsidiaries of the Consolidated Group which cease, in connection with such Reorganization, to be owned as a result of a transaction that otherwise is, or would be, per- mitted under this Indenture (but for the inclusion of this definition); and (b) immediately after giving effect to any Reorganization, including the re- lease of any Guarantor or the addition of any Guarantor, the Issuer and the Guaran- tors will own, directly or indirectly, all or substantially all of the assets (other than any Holding Companies) as they collectively owned before such Reorganization; provided that in connection with any release of the Note Guarantee of Xxxxx Xxxxxx International Group Limited, a direct or indirect Wholly Owned Subsidiary of the Parent, which shall be a Person organized and existing under the laws of the United States or a state thereof, Australia or a state thereof, Canada or a province thereof, a member state of the European Union, the United Kingdom or any other jurisdiction (other than The Philippines) in which the Issuer, a Guarantor or a Wholly-Owned Subsidiary of Holdings is organized as of the Issue Date (the “Replacement Entity”), provides a Note Guarantee substantially concurrently with such release and such Re- placement Entity owns directly or indirectly 100% of the Equity Interests of the Re- stricted Subsidiaries (other than any Holding Companies) immediately following the provision by the Replacement Entity of such Note Guarantee. The Issuer will provide written notice to the Trustee upon the completion of any Permitted Reorganization. “Permitted Security Interest” shall mean:
-27- (1) Security Interests on property acquired, constructed, developed or im- proved after the Issue Date by Holdings or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after such acquisition, construction, development or improvement; (2) Security Interests on property at the time of the acquisition thereof, which secure obligations assumed by Holdings or a Restricted Subsidiary, or on the property or on the outstanding shares or indebtedness of a corporation or firm at the time it becomes a Restricted Subsidiary or is merged into or consolidated with Hold- ings or a Restricted Subsidiary, or on properties of a corporation or firm acquired by Holdings or a Restricted Subsidiary as an entirety or substantially as an entirety; pro- vided that the Security Interests may not extend to any other property of Holdings or such Restricted Subsidiary other than proceeds and products of such property, shares or indebtedness and accessions thereto; (3) Security Interests arising from conditional sales agreements or title re- tention agreements with respect to property acquired by Holdings or any Restricted Subsidiary; (4) Security Interests securing indebtedness of Holdings or a Restricted Subsidiary owing to Holdings or to another Restricted Subsidiary; (5) Security Interests (a) to secure obligations under the Credit Facilities or other Indebtedness or (b) in accounts receivable and related assets of the types speci- fied in the definition of “Qualified Receivables Transaction” incurred in connection with a Qualified Receivables Transaction, in an aggregate principal amount under clauses (a) and (b) combined not to exceed the greater of (x) $1,000.0 million and (y) the maximum amount that would not cause the Senior Secured Net Leverage Ratio to exceed 3.50 to 1.00 after giving effect to the incurrence of the obligations to be se- cured by such Security Interests; (6) Security Interests existing on the Issue Date; (7) any Security Interest arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business, or the exercise of any privilege, xxxx- chise or license; (8) carriers’, warehousemen’s, mechanics’ and other statutory liens arising in the ordinary course of business (including construction of facilities) in respect of obligations that are not more than 90 days overdue or that are being contested in good faith;
-28- (9) Security Interests for taxes, assessments or governmental charges that are not more than 90 days overdue or for taxes, assessments or governmental charges that are being contested in good faith; (10) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed or does not give rise to an Event of Default; (11) landlords’ liens on fixtures on premises leased in the ordinary course of business; (12) Security Interests to secure the performance of statutory obligations, in- surance, surety or appeal bonds, performance bonds, or other obligations of a like na- ture incurred in the ordinary course of business (including Security Interests to secure letters of credit issued to assure payment of such obligations); (13) Security Interests on assets of Holdings or any of its Restricted Subsid- iaries securing Hedging Obligations or Treasury Management Arrangements; (14) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate material- ly impair the use of said properties in the operation of the business of Holdings and its Restricted Subsidiaries; (15) Security Interests on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings; (16) filing of Uniform Commercial Code financing statements as a precau- tionary measure in connection with operating leases; (17) bankers’ liens and rights of setoff; (18) Security Interests in cash, cash equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness; (19) Security Interests on specific items of inventory or other goods (and the proceeds thereof) of Holdings or a Restricted Subsidiary securing such Person’s obli- gations in respect of bankers’ acceptances or trade-related letters of credit issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
-29- (20) grants of intellectual property licenses (including software and other technology licenses) in the ordinary course of business; (21) Security Interests incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insur- ance and other types of social security and employee health and disability benefits (in- cluding pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements); (22) pledges and deposits made in the ordinary course of business to secure liability to insurance carriers; (23) Security Interests to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the pur- chase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such property; (24) Security Interests on the Capital Stock of any Unrestricted Subsidiary or joint venture which secures Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture; (25) Security Interests on the assets of any Restricted Subsidiary that is not a Guarantor and which secures Indebtedness or other obligations of such Restricted Subsidiary (or of another Restricted Subsidiary that is not a Guarantor); (26) Security Interests to secure any refinancing, refunding, extension, re- newal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Security In- terest referred to in the foregoing clauses (1), (2), (5), (6) or (23) above or this clause (26); provided that (x) such new Security Interest shall be limited to all or part of the same property that secured the original Security Interest (plus improvements thereof, accessions thereto and proceeds and products thereof) and (y) the Indebtedness se- cured by such Security Interest at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (1), (2), (5), (6) or (23) above at the time the original Security Interest became a Permitted Security Interest under this Indenture and in the case of this clause (26) at the time of refinancing, refunding, extending, re- newing or replacing such Permitted Security Interest, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refund- ing, extension, renewal or replacement; or
-30- (27) other Security Interests securing Indebtedness, in an aggregate principal amount for Holdings and its Restricted Subsidiaries together with the amount of At- tributable Indebtedness incurred in connection with Sale and Leaseback Transactions, not exceeding at the time such Security Interest is created or assumed the greater of $150.0 million and 7.5% of Consolidated Net Tangible Assets (provided that any In- debtedness incurred to refinance, refund, extend, renew or replace Indebtedness se- cured by Security Interests pursuant to this clause (27) shall be permitted to be secured by Security Interests pursuant to this clause (27) notwithstanding that at the time of in- xxxxxxxx thereof, such Indebtedness may exceed the amount that would then be per- mitted to be secured under this clause (27) due to a diminution in the amount of Con- solidated Net Tangible Assets). Additionally, any permitted Secured Debt includes (with certain limitations) any extension, renewal or refunding, in whole or in part, of any Secured Debt permitted at the time of the original incurrence thereof. For purposes of determining compliance with Section 4.11, a Security Interest need not be permitted solely by one category of Permitted Security Interests but may be per- mitted in part under any combination thereof, and if a Permitted Security Interest (or any por- tion thereof) meets the criteria or more than one of the exceptions described in clauses (1) through (27) above, Holdings may, in its sole discretion, classify or reclassify the Permit- xxx Security Interest (or any portion thereof) in any manner that complies with Section 4.11. “Person” means an individual, partnership, corporation, limited liability com- pany, trust, unincorporated organization, trust or joint venture, association, or a governmental agency or political subdivision thereof or other entity. “Physical Notes” means certificated Notes in registered form that are not Global Notes. “Preferred Stock” means, with respect to any Person, any and all preferred or preference stock or other equity interests (however designated) of such Person having a pref- erence or priority over other Equity Interests (however designated) of such Person, whether outstanding as of, or issued after, the Issue Date. “principal” of a Note means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time. “Principal Facility” means any land, building, machinery or equipment, or leasehold interests and improvements in respect of the foregoing, owned, on the date of this Indenture or thereafter, by Holdings or a Restricted Subsidiary, which has a gross book value (without deduction for any depreciation reserves) at the date as of which the determination is being made in excess of 1.0% of Consolidated Net Tangible Assets, other than any such land,
-31- building, machinery or equipment, or leasehold interests and improvements in respect of the foregoing which, in the opinion of the Board of Directors of Holdings (evidenced by a board resolution), is not of material importance to the business conducted by Holdings and its Re- stricted Subsidiaries taken as a whole. “Private Placement Legend” means the legend substantially in the form set forth in Exhibit B. “Pro Forma Entity” means any Acquired Entity or Business, any Sold Entity or Business, any Converted Restricted Subsidiary or any Converted Unrestricted Subsidiary. “Qualified Equity Interests” of any Person means Equity Interests of such Per- son other than Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified Equity Interests to the extent sold to a Subsidiary of such Person or fi- nanced, directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such Person or any Subsidiary of such Person (including, without limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of Holdings. “Qualified Institutional Buyer” shall have the meaning specified in Rule 144A promulgated under the Securities Act. “Qualified Receivables Transaction” means any transaction or series of trans- actions that may be entered into by Holdings or any of its Restricted Subsidiaries pursuant to which Holdings or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to: (1) a Receivables Entity (in the case of a transfer by Holdings or any of its Restricted Subsidiaries), or (2) any other Person (in the case of a transfer by a Receivables Entity), or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of Holdings or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable; provided, however, that the financing terms, covenants, termination events and other provisions thereof shall be market terms in all material respects at the time of such transaction (as determined in good faith by Holdings). The grant of a Security Interest in any accounts receivable of Holdings or any of its Restricted Subsidiaries to secure Indebtedness under Credit Facilities shall not be deemed a Qualified Receivables Transaction.
-32- “Rating Agencies” means Xxxxx’x and S&P or if Xxxxx’x or S&P or both cease to rate the Notes of a series for reasons outside of the control of the Issuer, a nationally recognized statistical rating organization or organizations, as the case may be, within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Parent which shall be sub- stituted for Xxxxx’x or S&P or both with respect to such series of Notes, as the case may be. “Rating Decline” means, with respect to any series of Notes, the occurrence of a decrease in the rating of the Notes of such series by one or more gradations by any of the two Rating Agencies (including gradations within the rating categories, as well as between categories), within 60 days after the earlier of (x) a Change of Control, (y) the date of public notice of the occurrence of a Change of Control or (z) public notice of the intention by the Parent, the Issuer or Holdings to effect a Change of Control (which 60-day period shall be ex- tended so long as the rating of the Notes of such series is under publicly announced considera- tion for possible downgrade by each such Rating Agency); provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rat- ing Decline for purposes of the definition of Change of Control Triggering Event) unless the Rating Agency making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the Trustee in writing at the Parent’s, the Issuer’s or Holdings’ or its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline); provided, further, that notwithstanding the foregoing, a Ratings Decline shall not be deemed to have occurred so long as such series of Notes has an Investment Grade Rat- ing from two Rating Agencies. “Receivables Entity” means (a) a Wholly Owned Subsidiary of Holdings that is designated by the Board of Directors of Holdings (as provided below) as a Receivables En- tity or (b) another Person engaging in a Qualified Receivables Transaction with Holdings, which Person engages in the business of the financing of accounts receivable, and in the case of either clause (a) or (b): (1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity: (A) is Guaranteed by Holdings or any Restricted Subsidiary of Holdings (excluding Guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (B) is recourse to or obligates Holdings or any Restricted Subsidi- ary of Holdings in any way (other than pursuant to Standard Securitization Undertakings), or
-33- (C) subjects any asset of Holdings or any Restricted Subsidiary of Holdings, directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings); (2) the entity is not an Affiliate of Holdings or is an entity with which nei- ther Holdings nor any Restricted Subsidiary of Holdings has any material contract, agreement, arrangement or understanding other than on terms that Holdings reasona- xxx believes to be no less favorable to Holdings or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of Hold- ings; and (3) is an entity to which neither Holdings nor any Restricted Subsidiary of Holdings has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of Holdings shall be evidenced to the Trustee by providing the Trustee a certified copy of the resolution of the Board of Di- rectors of Holdings giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions. “Redemption Date” when used with respect to any Note to be redeemed pursu- ant to paragraph 5 of the Notes, means the date fixed for such redemption pursuant to the terms of this Indenture and the Notes. “Registrar” has the meaning set forth in Section 2.04. “Regulation S” means Regulation S promulgated under the Securities Act. “Regulation S Global Note” has the meaning set forth in Section 2.16(a). “Regulation S Legend” means the legend substantially in the form set forth in Exhibit E. “Regulation S Notes” has the meaning set forth in Section 2.02. “Relevant Taxing Jurisdiction” means any of the following, including any po- litical subdivision or governmental authority thereof or therein: (1) Ireland; (2) any jurisdiction from or through which any payment made by or on behalf of the Issuer or any Guarantor under or with respect to the Notes or any Note Guarantee is made; or
-34- (3) any other jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes. “Reorganization” has the meaning specified in the definition of “Permitted Re- organization.” “Replacement Entity” has the meaning specified in the definition of “Permitted Reorganization.” “Responsible Officer” means, when used with respect to the Trustee, any of- ficer in the corporate trust department of the Trustee including any director, vice president, assistant vice president or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, in each case having direct responsibility for the administration of this Indenture, and any other officer to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject. “Restricted Global Note” means a Global Note that is a Restricted Note. “Restricted Note” has the same meaning as “restricted security” set forth in Rule 144(a)(3) promulgated under the Securities Act; provided that the Trustee shall be enti- tled to request (at the expense of the Issuer) and conclusively rely upon an Opinion of Coun- sel with respect to whether any Note is a Restricted Note. “Restricted Payment” means any of the following: (a) the declaration or payment of any dividend or any other distribution on Equity Interests of Holdings or any payment made to the direct or indirect holders (in their capacities as such) of Equity Interests of Holdings, including, without limitation, any payment in connection with any merger or consolidation involving Holdings but excluding dividends or distributions payable solely in Qualified Equity Interests of Holdings or through accretion or accumulation of such dividends on such Equity In- terests; (b) the redemption of any Equity Interests of Holdings, including, without limitation, any payment in connection with any merger or consolidation involving Holdings; or (c) any Investment in an Unrestricted Subsidiary. “Restricted Payments Basket” has the meaning set forth in clause (c) of the first paragraph of Section 4.10.
-35- “Restricted Period” has the meaning set forth in Section 2.17(b)(i). “Restricted Physical Note” means a Physical Note that is a Restricted Note. “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of Holdings that is not then an Unrestricted Subsidiary; provided, however, that upon the occur- rence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of Restricted Subsidiary. “Rule 144” means Rule 144 promulgated under the Securities Act. “Rule 144A” means Rule 144A promulgated under the Securities Act. “Rule 144A Global Note” has the meaning set forth in Section 2.16(a). “Rule 144A Notes” has the meaning set forth in Section 2.02. “S&P” means Standard & Poor’s Ratings Service, and any successor to its rat- ing agency business. “Sale and Leaseback Transaction” means any sale or transfer made by Hold- ings or one or more Restricted Subsidiaries (except a sale or transfer made to Holdings or one or more Restricted Subsidiaries) of any Principal Facility that (in the case of a Principal Facil- ity which is a building or equipment) has been in operation, use or commercial production (exclusive of test and start-up periods) by Holdings or any Restricted Subsidiary for more than 180 days prior to such sale or transfer, or that (in the case of a Principal Facility that is a parcel of real property not containing a building) has been owned by Holdings or any Re- stricted Subsidiary for more than 180 days prior to such sale or transfer, if such sale or trans- fer is made with the intention of leasing, or as part of an arrangement involving the lease of such Principal Facility to Holdings or a Restricted Subsidiary (except a lease for a period not exceeding 36 months made with the intention that the use of the leased Principal Facility by Holdings or such Restricted Subsidiary will be discontinued on or before the expiration of such period); provided, however, that the creation of any Secured Debt permitted under Sec- tion 4.11 shall not be deemed to create or be considered a Sale and Leaseback Transaction. “Secured Debt” means outstanding Indebtedness of Holdings or a Restricted Subsidiary which is secured by (a) a Security Interest in any assets of Holdings or any Re- stricted Subsidiary, or (b) a Security Interest in any shares of stock owned directly or indirect- ly by Holdings in a Restricted Subsidiary. The securing in the foregoing manner of any previ- ously unsecured debt shall be deemed to be the creation of Secured Debt at the time such se- curity is given. The amount of Secured Debt at any time outstanding shall be the aggregate principal amount then owing thereon by Holdings and the Restricted Subsidiaries.
-36- “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. “Security Interest” means any mortgage, pledge, lien, encumbrance or other security interest which secures payment or performance of an obligation. “Senior Secured Net Leverage Ratio” means, as of the date of determination, the ratio of (a) the Total Net Debt of the Consolidated Group secured by a Security Interest as of the last day of the most recently ended four quarter period ended immediately prior to such date of determination for which consolidated financial statements are available to (b) Consol- idated Adjusted EBITDA of the Consolidated Group for the most recently ended four fiscal quarter period ending immediately prior to such date for which consolidated financial state- ments are available. In the event that any Consolidated Group member incurs, redeems, re- tires, defeases or extinguishes any Total Net Debt (other than Indebtedness under a revolving credit facility unless such Indebtedness has been permanently paid and not replaced) subse- quent to the commencement of the period for which the Senior Secured Net Leverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Senior Secured Net Leverage Ratio is made, then the Senior Secured Net Leverage Ratio shall be calculated giving pro forma effect to such incurrence, redemption, retirement, defeasance or extinguishment of Total Net Debt as if the same had occurred at the beginning of the appli- cable four-quarter period. Notwithstanding anything to the contrary set forth in the definition of “Consolidated Adjusted EBITDA” (and all component definitions referenced in such defi- nitions), whenever pro forma effect is to be given to any Asset Acquisition, Asset Disposition (in each case with a fair market value (as determined in good faith by Holdings) greater than $10.0 million) or incurrence, redemption, retirement, defeasance or extinguishment of Total Net Debt, the pro forma calculations shall be determined in good faith by a responsible officer of the Parent or Holdings. “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation was in effect on the Issue Date. “Sold Entity or Business” has the meaning specified in the definition of Con- solidated Adjusted EBITDA.” “Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by Holdings or any Restricted Subsidiary of Holdings that, taken as a whole, are customary in an accounts receivable transaction (as determined in good faith by Holdings). “Subordinated Indebtedness” means Indebtedness of Holdings or any Restrict- ed Subsidiary that is expressly subordinated in right of payment to the Notes or the Note Guarantees by Holdings or such Restricted Subsidiary, as the case may be.
-37- “Subsidiary” of a Person means a corporation, association, partnership, limited liability company or other entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiar- ies” shall refer to a Subsidiary or Subsidiaries of Holdings. “Tax” means any tax, duty, xxxx, impost, assessment, deduction, withholding or other charge imposed by any governmental authority (including penalties, additions to tax, interest and any other liabilities related thereto). “Terminated Covenants” has the meaning set forth in Section 4.15(a). “TIA” means the Trust Indenture Act of 1939, as amended. “Total Net Debt” means, at any date of determination, the aggregate amount of all outstanding indebtedness of the types described in clauses (a), (b) or (f) of the definition of “Indebtedness” (less any unrestricted cash and cash equivalents to the extent not constituting Excluded Amounts) of the Consolidated Group determined on a consolidated basis in accord- ance with GAAP. Notwithstanding the foregoing, for purposes of Section 4.11, a binding commitment to lend under a revolving credit facility shall be deemed to be an incurrence of Indebtedness in the full amount of such commitment on the date that such commitment is en- tered into, regardless of whether the full amount of such revolving credit facility is actually borrowed, and thereafter the amount of such commitment shall be deemed fully borrowed at all times. “Total Net Leverage Ratio” means, as of the date of determination, the ratio of (a) the Total Net Debt of the Consolidated Group as of the last day of the most recently ended four fiscal quarter period ended immediately prior to such date of determination for which consolidated financial statements are available to (b) Consolidated Adjusted EBITDA of the Consolidated Group for the most recently ended four fiscal quarter period ending immediately prior to such date for which consolidated financial statements are available. In the event that any Consolidated Group member incurs, redeems, retires, defeases or extinguishes any Total Net Debt (other than Indebtedness under a revolving credit facility unless such Indebtedness has been permanently paid and not replaced) subsequent to the commencement of the period for which the Total Net Leverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Total Net Leverage Ratio is made, then the Total Net Leverage Ratio shall be calculated giving pro forma effect to such incurrence, redemp- tion, retirement, defeasance or extinguishment of Total Net Debt as if the same had occurred at the beginning of the applicable four-quarter period. Notwithstanding anything to the contra- ry set forth in the definition of Consolidated Adjusted EBITDA (and all component defini- tions referenced in such definitions), whenever pro forma effect is to be given to any Asset Acquisition, Asset Disposition (in each case with a fair market value (as determined in good faith by Holdings) greater than $10.0 million) or incurrence, redemption, retirement, defea-
-38- sance or extinguishment of Total Net Debt, the pro forma calculations shall be determined in good faith by a responsible officer of the Parent or Holdings. “Transfer” means to sell, assign, transfer, lease (other than pursuant to an oper- ating lease entered into in the ordinary course of business), convey or otherwise dispose of, including by Sale and Leaseback Transaction, consolidation, merger, liquidation, dissolution or otherwise, in one transaction or a series of transactions. “Treasury Management Arrangement” means any agreement or other arrange- ment governing the provision of treasury or cash management services, including deposit ac- counts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconcilia- tion and reporting and trade finance services and other cash management services. “Trustee” means the party named as such in this Indenture until a successor re- places it pursuant to this Indenture and thereafter means such successor. “Unsecured Revolving Credit Facility” means that certain Credit and Guaranty Agreement, dated December 10, 2015, by and among Xxxxx Xxxxxx International Finance Designated Activity Company and Xxxxx Xxxxxx Building Products Inc., as borrowers, Xxxxx Xxxxxx International Group Limited and Xxxxx Xxxxxx Technology Limited, as guarantors, Xxxxx Xxxxxx Industries plc, as parent, HSBC Bank USA, National Association, as adminis- trative agent, and the other lender parties thereto (as may be amended, restated, amended and restated, supplemented, waived or otherwise modified, renewed, refunded, replaced or re- financed in whole or in part from time to time in one or more agreements or indentures (in each case, with the same or new agents, lenders, creditors or groups of lenders or creditors, trustees or note holders), including in connection with a Permitted Reorganization, and in- cluding any agreement or indenture extending the maturity of or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereun- der or altering the maturity thereof (including increasing the amount of available borrowings thereunder or adding Subsidiaries of Holdings as borrowers or guarantors thereunder). “Unrestricted Global Note” means a Global Note that is not a Restricted Note. “Unrestricted Notes” means Notes that are not Restricted Notes. “Unrestricted Physical Note” means a Physical Note that is not a Restricted Note. “Unrestricted Subsidiary” means (a) Xxxxx Xxxxxx 117 Pty Ltd (unless, such Person has been designated as a Restricted Subsidiary after the Issue Date as provided below) and (b) any other Subsidiary of Holdings other than the Issuer that at the time of determina- tion is an Unrestricted Subsidiary (as designated by the Board of Directors of Holdings after
-39- the Issue Date, as provided below) and (c) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of Holdings may designate any Subsidiary of Holdings (including any ex- isting Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary after the Issue Date unless such Subsidiary or any of its Subsidiaries owns any Eq- uity Interests or Indebtedness of, or owns or holds any lien on, any property of, Holdings or any Restricted Subsidiary of Holdings (other than any Subsidiary of the Subsidiary to be so designated), provided that (i) such designation complies with Section 4.10 and (ii) each of (1) the Subsidiary to be so designated and (2) its Subsidiaries has not at the time of designa- tion, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become di- rectly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Holdings or any Restricted Subsidiary. The Board of Direc- tors of Holdings may designate any Unrestricted Subsidiary to be a Restricted Subsidi- ary; provided that, such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Holdings of any outstanding Indebtedness of such Unrestricted Sub- sidiary, and such designation will only be permitted if immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be notified by Holdings to the Trustee by prompt- ly filing with the Trustee a copy of the board resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provi- sions. For the avoidance of doubt, Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in this Indenture. “U.S. Government Obligations” means marketable direct obligations issued by, or unconditionally guaranteed as to full and timely payment by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States of America that, in each case, mature within one year from the date of ac- quisition thereof and are not callable or redeemable at the option of the issuer thereof. “U.S. Person” means a “U.S. person” as defined in Rule 902(k) under the Se- curities Act. “Voting Stock” means any class or classes of Capital Stock pursuant to which the holders thereof have power to vote in the election of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency). “Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than direc- tors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Sub- sidiaries of such Person.
-42- SECTION 2.03. Execution and Authentication. The Notes shall be executed on behalf of the Issuer by an Officer of the Issuer. The signature of the Officer on the Notes may be manual or facsimile. If the Officer whose signature is on a Note was an Officer at the time of such execution but no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless. No Note shall be entitled to any benefit under this Indenture or be valid or ob- ligatory for any purpose unless there appears on such Note a certificate of authentication sub- stantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee for cancellation as provided in Section 2.12, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Inden- ture. The Trustee may appoint one or more authenticating agents, at the expense of the Issuer, to authenticate the Notes. Unless otherwise provided in the appointment, an au- thenticating agent may authenticate the Notes whenever the Trustee may do so. Each refer- ence in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer. Each Paying Agent is designated as an authenticating agent for purposes of this Indenture. Notes shall be issuable only in registered form without coupons in denomina- tions of $200,000 and any integral multiple of $1,000 in excess thereof. SECTION 2.04. Registrar and Paying Agent. The Issuer shall maintain (a) an office or agency where Notes may be present- ed for registration of transfer or for exchange (the “Registrar”), (b) an office or agency in the Borough of Manhattan, The City of New York, the State of New York or in the city in the United States in which the Trustee’s Corporate Trust Office is located, where Notes may be presented for payment (the “Paying Agent”) and (c) an office or agency where notices and demands to or upon the Issuer, if any, in respect of the Notes and this Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Registrar shall provide a copy of such register from time to time upon request of the Issu- er. The Issuer may appoint one or more co-registrars and one or more additional Paying Agents. The term “Registrar” includes any co-registrars. The term “Paying Agents” means
-48- SECTION 2.15. Deposit of Moneys. Prior to 11:00 A.M., New York City time, on each Interest Payment Date and Maturity Date, the Issuer shall have deposited with the Paying Agent in immediately available funds U.S. Dollars sufficient to make cash payments, if any, due on such Interest Payment Date or Maturity Date, as the case may be, in a timely manner which permits such Paying Agents to remit payment to the Holders on such Interest Payment Date or Maturity Date, as the case may be. The principal and interest on Global Notes shall be payable to the Deposito- ry or its nominee, as the case may be, as the sole registered owner and the sole Holder of the Global Notes represented thereby. The principal and interest on Physical Notes shall be pay- able, either in person, by wire transfer or by mail, at the office of the Paying Agent, such payment information to be received by the Paying Agent at least 15 days prior to the applica- ble payment date. Final payment of principal at maturity with respect to a Physical Note will only be made by the Trustee upon surrender of the related Note to the Trustee at its Corporate Trust Office. SECTION 2.16. Book-Entry Provisions for Global Notes. (a) Rule 144A Notes of each series initially shall be represented by one or more Notes of such series in registered, global form without interest coupons (collectively with respect to each series, the “Rule 144A Global Note”). Regulation S Notes of each series initially shall be represented by one or more Notes of such series in registered, global form without interest coupons (collectively with respect to each series, the “Regulation S Global Note”). With respect to each series of Notes, the term “Global Notes” means the Rule 144A Global Note and the Regulation S Global Note. The Global Notes shall bear the Global Note Legend. The Global Notes initially shall (i) be registered in the name of the Depository or the nominee of such Depository, in each case for credit to an account of an Agent Member, (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear the Private Placement Legend. Members of, or direct or indirect participants in, the Depository (“Agent Mem- bers”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depository or under the Global Notes. The Depository may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving ef- fect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary prac- tices governing the exercise of the rights of a Holder of any Note. None of the Issuer, the Trustee, the Paying Agent nor the Registrar shall have any responsibility or liability for any acts or omissions of the Depository with respect to such Global Note, for the records of the Depository, including records in respect of the beneficial owners of any such Global Note, for any transactions between the Depository and any Agent Member or between or among the
-49- Depository, any such Agent Member and/or any Holder or beneficial owner of such Global Note, or for any transfers of beneficial interests in any such Global Note. Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depository. (b) Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Physical Notes of the same series only in accordance with the applicable rules and procedures of the Depository and the provisions of Section 2.17. In addition, a Global Note shall be exchangeable for Physical Notes of the same series (i) if requested by a holder of such interests upon receipt by the Trus- tee of written instructions from the Depository or its nominee on behalf of any beneficial owner and in accordance with the rules and procedures of the Depository and provisions of this Section 2.16 or (ii) if the Depository notifies the Issuer that it is unwilling or unable to continue as depository for such Global Note and the Issuer thereupon fail to appoint a succes- sor depository within 120 days or (iii) if the Depository has ceased to be a clearing agency registered under the Exchange Act or (iv) if there shall have occurred and be continuing an Event of Default with respect to such Global Note and the Depository has requested such ex- change. In all cases, Physical Notes delivered in exchange for any Global Note of the same series or beneficial interests therein shall be registered in the names, and issued in any ap- proved denominations, requested by or on behalf of the Depository in accordance with its cus- tomary procedures. (c) In connection with the transfer of a Global Note as an entirety to bene- ficial owners pursuant to subsection (b) of this Section 2.16, such Global Note shall be deemed to be surrendered to the Trustee for cancellation in accordance with its customary procedures, and the Issuer shall execute and, upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in accordance with Section 2.01, the Trustee shall authen- ticate and deliver, to each beneficial owner identified by the Depository in writing in ex- change for its beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations and of the same series. (d) Any Restricted Physical Note delivered in exchange for an interest in a Global Note of the same series pursuant to Section 2.17 shall, except as otherwise provided in Section 2.17, bear the Private Placement Legend. (e) The Holder of any Global Note may grant proxies and otherwise au- thorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
-52- (iv) at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in accordance with Section 2.01, the Trustee shall authenticate one or more Unrestricted Global Notes of the same series in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred or exchanged pursu- ant to this subparagraph (iv). (v) Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note. (c) Transfer and Exchange of Beneficial Interests in Global Notes for Physical Notes. A beneficial interest in a Global Note may not be exchanged for a Physical Note except under the circumstances described in Section 2.16(b). A beneficial interest in a Global Note may not be transferred to a Person who takes delivery thereof in the form of a Physical Note except under the circumstances described in Section 2.16(b). (d) Transfer and Exchange of Physical Notes for Beneficial Interests in Global Notes. Transfers and exchanges of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i), (ii) or (ii) below, as applicable: (i) Restricted Physical Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Physical Note proposes to exchange such Re- stricted Physical Note for a beneficial interest in a Restricted Global Note or to trans- fer such Restricted Physical Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation: (A) if the Holder of such Restricted Physical Note proposes to ex- change such Restricted Physical Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit G, including the certifications in item (2)(a) thereof; (B) if such Restricted Physical Note is being transferred to a Quali- fied Institutional Buyer in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit F, including the certifications in item (1) thereof; (C) if such Restricted Physical Note is being transferred to a Non- U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit F, including the certifications in item (2) thereof;
-53- (D) if such Restricted Physical Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in ac- cordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit F, including the certifications in item (3)(a) thereof; (E) [reserved]; or (F) if such Restricted Physical Note is being transferred to the Issu- er or a Subsidiary thereof, a certificate to the effect set forth in Exhibit F, in- cluding the certifications in item (3)(b) thereof, the Trustee shall cancel the Restricted Physical Note in accordance with its customary procedures, and increase or cause to be increased the aggregate principal amount of the appropriate Restricted Global Note. (ii) Restricted Physical Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Physical Note of a series may exchange such Re- stricted Physical Note for a beneficial interest in an Unrestricted Global Note of such series or transfer such Restricted Physical Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series only if the Registrar receives the following: (A) if the Holder of such Restricted Physical Note proposes to ex- change such Restricted Physical Note for a beneficial interest in an Unrestrict- ed Global Note of such series, a certificate from such Holder in the form of Exhibit G, including the certifications in item (1)(b) thereof; or (B) if the Holder of such Restricted Physical Notes proposes to transfer such Restricted Physical Note to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series, a certificate from such Holder in the form of Exhibit F, including the certifications in item (4) thereof, and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securi- ties Act and that the restrictions on transfer contained herein and in the Private Place- ment Legend are no longer required in order to maintain compliance with the Securi- ties Act. Upon satisfaction of the conditions of this subparagraph (ii), the Trustee shall cancel the Restricted Physical Notes in accordance with its customary procedures and increase or cause to be increased the aggregate principal amount of the Unrestrict- ed Global Note. If any such transfer or exchange is effected pursuant to this subpara- graph (ii) at a time when an Unrestricted Global Note has not yet been issued, the Is- xxxx shall issue and, upon receipt of a written order of the Issuer in the form of an Of-
-54- ficer’s Certificate in accordance with Section 2.01, the Trustee shall authenticate one or more Unrestricted Global Notes of such series in an aggregate principal amount equal to the aggregate principal amount of Restricted Physical Notes transferred or ex- changed pursuant to this subparagraph (ii). (iii) Unrestricted Physical Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Physical Note of a series may exchange such Unrestricted Physical Note for a beneficial interest in an Unrestricted Global Note of such series or transfer such Unrestricted Physical Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Physical Note in accordance with its customary procedures and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes of such series. If any such transfer or exchange is effected pursuant to this subparagraph (iii) at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of a writ- ten order of the Issuer in the form of an Officer’s Certificate in accordance with Sec- tion 2.01, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of Unrestricted Physical Notes of such series transferred or exchanged pursuant to this subparagraph (iii). (iv) Unrestricted Physical Notes to Beneficial Interests in Restricted Global Notes. An Unrestricted Physical Note cannot be exchanged for, or transferred to a Person who takes delivery thereof in the form of, a beneficial interest in a Restricted Global Note. (e) Transfer and Exchange of Physical Notes for Physical Notes. Upon written request by a Holder of Physical Notes and such Holder’s compliance with the provi- sions of this Section 2.17(e), the Registrar shall register the transfer or exchange of Physical Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Physical Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Xxxxxx or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.17(e). (i) Restricted Physical Notes to Restricted Physical Notes. A Restricted Physical Note may be transferred to and registered in the name of a Person who takes delivery thereof in the form of a Restricted Physical Note if the Registrar receives the following:
-55- (A) if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Ex- hibit F, including the certifications in item (1) thereof; (B) if the transfer will be made pursuant to Rule 903 or Rule 904 under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit F, including the certifications in item (2) thereof; (C) if the transfer will be made pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit F, includ- ing the certifications in item (3)(a) thereof; (D) [reserved]; and (E) if such transfer will be made to the Issuer or a Subsidiary there- of, a certificate to the effect set forth in Exhibit F, including the certifications in item (3)(b) thereof. (ii) Restricted Physical Notes to Unrestricted Physical Notes. Any Re- stricted Physical Note of a series may be exchanged by the Holder thereof for an Un- restricted Physical Note of such series or transferred to a Person who takes delivery thereof in the form of an Unrestricted Physical Note of such series if the Registrar re- ceives the following: (1) if the Holder of such Restricted Physical Note proposes to ex- change such Restricted Physical Note for an Unrestricted Physical Note of such series, a certificate from such Holder in the form of Exhibit G, including the certifications in item (1)(c) thereof; or (2) if the Holder of such Restricted Physical Note proposes to trans- fer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Physical Note of such series, a certificate from such Holder in the form of Exhibit F, including the certifications in item (4) thereof, and, in each such case, an Opinion of Counsel in form reasonably acceptable to the Is- xxxx to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. (iii) Unrestricted Physical Notes to Unrestricted Physical Notes. A Holder of an Unrestricted Physical Note may transfer such Unrestricted Physical Notes to a Person who takes delivery thereof in the form of an Unrestricted Physical Note of the
-56- same series at any time. Upon receipt of a written request to register such a transfer, the Registrar shall register such Unrestricted Physical Notes pursuant to the instruc- tions from the Holder thereof. (iv) Unrestricted Physical Notes to Restricted Physical Notes. An Unre- stricted Physical Note cannot be exchanged for, or transferred to a Person who takes delivery thereof in the form of, a Restricted Physical Note. (f) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Physical Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accord- ance with Section 2.12. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Physical Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an en- dorsement shall be made on such Global Note by the Registrar to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take deliv- ery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Registrar to reflect such increase. (g) Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the registration of transfer, ex- change or replacement of Notes bearing the Private Placement Legend, the Registrar shall de- liver only Notes that bear the Private Placement Legend unless (i) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compli- ance with the provisions of the Securities Act or (ii) such Note has been sold pursuant to an effective registration statement under the Securities Act and the Registrar has received an Of- ficer’s Certificate from the Issuer to such effect. (h) General. All Global Notes and Physical Notes issued upon any regis- tration of transfer or exchange of Global Notes or Physical Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Physical Notes surrendered upon such registration of transfer or ex- change. The Registrar shall retain for a period of two years copies of all letters, notices and other written communications received pursuant to Section 2.16 or this Section 2.17. The Issuer shall have the right to inspect and make copies of all such letters, notices or other writ-
-60- the Redemption Date; provided, however, that any redemption and notice thereof pursuant to this Indenture may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent described in such notice and in which case if and/or to the extent such condition(s) precedent is/are not satisfied the Issuer shall have no obligation to redeem Notes on such Redemption Date, including completion of an Equity Offering or other corporate transaction. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Redemption Date or by the Redemption Date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s discretion if the Issuer reasonably believes that any or all of such conditions will not be satisfied or waived. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price, including any premium, plus interest accrued to the Redemption Date; provided that if the Redemption Date is after a regular record date and on or prior to the Inter- est Payment Date, the accrued interest shall be payable to the Holder of the redeemed Notes registered on the relevant record date; and provided, further, that if a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding Business Day and no interest shall accrue for the period from such Redemption Date to such succeeding Business Day. SECTION 3.05. Deposit of Redemption Price. On or prior to 11:00 A.M., New York City time, on each Redemption Date, the Issuer shall deposit with the Paying Agent U.S. Dollars sufficient to pay the redemption price of, including premium, if any, and accrued interest on any and all Notes to be redeemed on that date (other than Notes or portions thereof called for redemption on that date which have been delivered by the Issuer to the Trustee for cancellation). On and after any Redemption Date, if money sufficient to pay the redemption price of, including premium, if any, and accrued interest on all Notes called for redemption shall have been made available in accordance with the immediately preceding paragraph, the Notes called for redemption will cease to accrue interest and the only right of the Holders of such Notes will be to receive payment of the redemption price of and, subject to the first pro- viso in Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any Note surrendered for redemption shall not be so paid, interest will be paid, from the Re- demption Date until such redemption payment is made, on the unpaid principal of the Note and (to the extent permitted by applicable law) any interest not paid on such unpaid principal, in each case at the rate and in the manner provided in the Notes.
-62- Taxing Jurisdiction in accordance with applicable law. The Issuer or any Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If certified copies of such tax receipts are not reasonably obtainable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with other reasonable evidence of payment. Such certified copies or other evidence shall be made available to Holders of Notes upon written request. (3) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium (if any), interest or of any other amount payable under or with respect to any of the Notes, such mention shall be deemed to include mention of the payment of Ad- ditional Amounts to the extent that, in such context, Additional Amounts are, were, or would be payable in respect thereof. (4) In addition, the Issuer shall pay any present or future stamp, issue, reg- istration, court, documentary, excise, property, or similar Taxes (i) imposed by any Relevant Taxing Jurisdiction in respect of the execution, issuance, delivery, or regis- tration of the Notes, any Note Guarantee, this Indenture, or any other document or in- strument referred to therein or herein, or the receipt of any payments with respect to the Notes, or (ii) imposed by any jurisdiction in respect of the enforcement of the Notes, any Note Guarantee, this Indenture, or any other document or instrument re- ferred to therein or herein. (5) If the Issuer or any Guarantor is required to pay Additional Amounts with respect to the Notes, Holdings will notify the Trustee pursuant to an Officer’s Certificate that specifies the Additional Amounts payable and when the Additional Amounts are payable. Without limiting any obligation of the Issuer or any Guarantor to pay Additional Amounts, if the Trustee does not receive such Officer’s Certificate, the Trustee may rely on the absence of such an Officer’s Certificate in assuming that no such Additional Amounts are payable. (6) The preceding provisions of this Section 4.01(c) shall survive any ter- mination, defeasance, or discharge of this Indenture and shall apply mutatis mutandis to any successor of the Issuer or any Guarantor, and to any jurisdiction in which such successor is incorporated, organized, engaged in business for tax purposes or other- wise resident for tax purposes, and any political subdivision or governmental authority thereof or therein.
-65- SECTION 4.08. Repurchase at the Option of Holders upon Change of Control Triggering Event. (a) Upon the occurrence of a Change of Control Triggering Event with re- spect to a series of Notes, each Holder of such series of Notes shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, thereon to, but excluding, the date of purchase (the “Change of Control Payment”). (b) Within 30 days following any Change of Control Triggering Event or, at the Issuer’s option, prior to the consummation of such Change of Control Triggering Event but after the public announcement of a Change of Control (in which case, the notice shall state that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event or such other conditions specified therein), the Issuer will mail (or to the ex- tent permitted or required by applicable Depository procedures or regulations with respect to Global Notes, sent electronically in .pdf format), a written notice to each Holder of such series and the Trustee. The notice shall describe the transaction or transactions that constitute the Change of Control Triggering Event and offer to repurchase Notes of such series on the pur- chase date specified in such notice (which must be no earlier than 20 days nor later than 60 days from the date such notice is sent (provided that the Change of Control Payment Date may be delayed, in the Issuer’s discretion, until such time (including more than 60 days after the date notice is sent) as any or all conditions to such Change of Control Offer are satisfied or waived), other than as required by law) (the “Change of Control Payment Date”) pursuant to the proce- dures required by this Indenture and described in such notice. Such notice shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.08 and that all Notes validly tendered and not validly withdrawn will be accepted for payment; (2) the offer price and the Change of Control Payment Date; (3) that any Note not tendered will continue to accrue interest; (4) that, unless the Issuer defaults in making payment therefor, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue in- terest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to the Change of Control Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent and Registrar for the Note at the address specified in the notice prior to the
-66- close of business on the third Business Day prior to the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the third Business Day prior to the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; (7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surren- dered; provided, however, that each Note purchased and each new Note issued shall be in a principal amount of $200,000 or integral multiples of $1,000 in excess thereof; and (8) the material circumstances and relevant facts regarding such Change of Control. (c) On the Change of Control Payment Date, the Issuer shall, to the extent lawful: (1) accept for payment all Notes or portions thereof (in minimum amounts of $200,000 or an integral multiple of $1,000 in excess thereof) properly tendered pur- suant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Con- trol Payment in respect of all Notes or portions thereof so tendered; and (3) deliver or cause to be delivered to the Trustee for cancellation all Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes (or portions thereof) being purchased by the Issuer. The Paying Agent will promptly remit to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Issuer shall execute and, upon receipt of a written order of the Issuer in the form of an Officer’s Certificate in accordance with Section 2.01, the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder of Notes a new Note equal in principal amount to any unpurchased por- tion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $200,000 or an integral multiple of $1,000 in excess thereof. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest to the
-67- Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date. With respect to the Notes of each series, if Holders of not less than 90% in ag- gregate principal amount of the then outstanding Notes of such series validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any other Person making a Change of Control Offer in lieu of the Issuer as described below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 15 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes of such series that remain outstanding following such purchase at a redemp- tion price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest to, but excluding, the Change of Control Payment Date (subject to the right of Holders of record of Notes of such series on a record date to receive interest due on the Redemption Date). Upon the payment of the Change of Control Payment, the Trustee shall, sub- ject to the provisions of Section 2.16, return the Notes purchased to the Issuer for cancella- tion. The Trustee may act as the Paying Agent for purposes of any Change of Control Offer. (d) The Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.08 with respect to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (2) notice of redemption has been given or will be given pursuant to this Indenture as described in Article Three, prior to the date the Issuer is required to send notice of the Change of Control Offer to the Holders of the applicable series of Notes, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditioned upon the consummation of such Change of Control Triggering Event or such oth- er conditions as specified therein, if a definitive agreement is in place for the Change of Con- trol at the time the Change of Control Offer is made and such Change of Control Offer is oth- erwise made in compliance with the provisions of this Section 4.08. (e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations con- flict with provisions of this Section 4.08, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Sec- tion 4.08 by virtue thereof.
-69- In the case of Section 4.09(a)(3)(B), a binding commitment to acquire Addi- tional Assets or to make any other Capital Expenditures shall be treated as a permitted appli- cation of the Net Available Cash from the date of such commitment so long as Holdings or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and such Net Available Cash is actually applied in such manner within the later of (i) 365 days from the date of the consummation of the As- set Disposition or the receipt of the related Net Available Cash and (ii) 180 days from the date of the Acceptable Commitment, it being understood that if any Acceptable Commitment is later cancelled or terminated for any reason after the 365th day from the date of the consum- mation of the Asset Disposition or the receipt of the related Net Available Cash and before such Net Available Cash is applied, then such Net Available Cash shall constitute Excess Pro- ceeds. Pending application of Net Available Cash pursuant to this Section 4.09, such Net Available Cash may be applied to temporarily reduce revolving credit Indebtedness or in any manner not prohibited by this Indenture. (b) For the purposes of this Section 4.09, the following are deemed to be Cash Consideration: (1) any liabilities (as reflected on the Consolidated Group’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred, accrued or in- creased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Consolidated Group’s consolidated balance sheet or in the foot- notes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Disposition); (2) any securities, notes or other obligations received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Re- stricted Subsidiary into cash or cash equivalents within 180 days after such Asset Dis- position, to the extent of the cash and cash equivalents received in that conversion; and (3) any Designated Non-cash Consideration received by Holdings or any of its Restricted Subsidiaries in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pur- suant to this clause that has at that time not been converted into cash or a cash equiva- lent, not to exceed the greater of $100.0 million and 5.0% of Consolidated Net Tangi- ble Assets (with the fair market value of each item of Designated Non-cash Considera-
-71- (a) a Default shall have occurred and be continuing or shall occur as a con- sequence thereof; (b) after giving effect to such Restricted Payment (including, without limi- tation, the incurrence of any Indebtedness to finance such Restricted Payment), the Consolidated Fixed Charge Coverage Ratio would be less than 2:00 to 1:00; or (c) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Re- stricted Payments made pursuant to clauses (b), (c), (d), (e), (f), (i), (k), (l), (n) or (o) of the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (with- out duplication): (1) 50% of Consolidated Net Income determined in accordance with GAAP for the period (taken as one accounting period) commencing on the first day of the fiscal quarter during which the Issue Date occurs to and in- cluding the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggre- gate deficit), plus (2) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by Holdings, of property and marketable se- curities, in each case received by Holdings from (a) the issuance and sale of Qualified Equity Interests of Holdings (or any direct or indirect parent compa- ny of Holdings) after the Issue Date or (b) the issuance or sale of convertible or exchangeable Disqualified Equity Interests of Holdings (or any direct or indi- rect parent company of Holdings) or convertible or exchangeable debt securi- ties of Holdings (or any direct or indirect parent company of Holdings), in each case that have been converted into or exchanged for Qualified Equity Interests of Holdings (or any direct or indirect parent company of Holdings), plus the aggregate net cash proceeds received by Holdings at the time of such conver- sion or exchange, or (c) any capital contribution made to Holdings, in each case other than (A) any such proceeds which are used to effect a Make-Whole Redemption (as defined in paragraph 5 of the Notes) of Notes, (B) any such proceeds or assets received from a Subsidiary of Holdings or (C) contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (c) of the next succeeding paragraph, plus (3) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of Holdings or any Restricted Subsidiary is re- duced on the consolidated balance sheet of the Consolidated Group upon the conversion or exchange subsequent to the Issue Date into Qualified Equity In-
-72- terests of Holdings (or any direct or indirect parent company of Holdings) (less the amount of any cash, or the fair value of assets, distributed by Holdings or any Restricted Subsidiary upon such conversion or exchange), plus (4) to the extent not already included in Consolidated Net Income, 100% of the aggregate amount received in cash and the fair market value, as determined in good faith by Holdings, of property and marketable securities received by means of the sale (other than to Holdings or a Restricted Subsidi- ary) of the Capital Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than, in each case, to the extent the Invest- ment in such Unrestricted Subsidiary was made by a Restricted Subsidiary pur- suant to clause (h) of the next succeeding paragraph) or a dividend from an Unrestricted Subsidiary, plus (5) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Sub- sidiary into Holdings or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to Holdings or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary, as determined by Holdings in good faith at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolida- tion or transfer of assets (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary was made by a Restricted Subsidi- ary pursuant to clause (h) of the next succeeding paragraph). The foregoing provisions will not prohibit: (a) the payment by Holdings of any dividend or the consummation of any redemption within 60 days after the date of declaration thereof or the giving of the re- demption notice, as the case may be, if on the date of declaration or notice, the divi- dend or redemption payment would have complied with the provisions of this Inden- ture; (b) the redemption of any Equity Interests of Holdings in exchange for, or out of the net cash proceeds of the substantially concurrent issuance and sale of, Quali- fied Equity Interests of Holdings; (c) payments by Holdings (including indirectly through any direct or indi- rect parent) to redeem Equity Interests of Holdings (or any direct or indirect parent company thereof) held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Hold- ings or its Subsidiaries (or any direct or indirect parent company thereof), upon their death, disability, retirement, severance or termination of employment or service or
-73- other repurchase event pursuant to any management equity plan or stock option plan, shareholders’ agreement or any other management or employee benefit plan or agree- ment or arrangement; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $25.0 million during any calendar year (with unused amounts being available to be used in the next succeeding two calendar years) plus (B) the amount of any net cash proceeds received by Holdings from the issuance and sale after the Issue Date of Qualified Equity Interests of Holdings (or any direct or indirect parent company thereof) to officers, directors or employees of Holdings or the Subsid- iaries (or any direct or indirect parent company thereof) that have not been applied to the payment of Restricted Payments pursuant to this clause (c), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (c); provided, that neither (x) cancellation of Indebtedness owing to Holdings (or any direct or indirect parent com- pany thereof) from any current or former officer, director or employee (or any permit- xxx transferees thereof) of Holdings or any of its Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of Hold- ings (or any direct or indirect parent company thereof) from such Persons nor (y) any payments or other obligations arising in respect of Equity Interests of Holdings (or any direct or indirect parent company thereof) held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) in connection with or resulting from the announcement or con- summation of a Change of Control, will be deemed to constitute a Restricted Payment for purposes of this Section 4.10 or any other provisions of this Indenture; (d) repurchases, acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise, conversion or exchange of stock options, warrants, other rights to acquire Equity Interests or other convertible or exchangeable securities if the Equity Interests represent all or a portion of the exercise, conversion or exchange price thereof, or in connection with the withholding of a portion of the Equity Interests granted or awarded to an employee to pay for the taxes payable by such employee up- on such grant or award or in connection with any such exercise, conversion or ex- change (and related payments by Holdings or any Restricted Subsidiary in respect thereof); (e) the payment of (and Restricted Payments to any direct or indirect par- ent company of Holdings to allow the payment of) cash in lieu of the issuance of frac- tional shares upon (i) the exercise of options or warrants, (ii) the conversion or ex- change of any convertible or exchangeable debt securities, or (iii) the conversion or exchange of Equity Interests of any Person (including in a merger, consolidation, amalgamation or similar transaction) and payments of cash to dissenting shareholders in connection with a merger, consolidation, amalgamation, or transfer of assets;
-74- (f) the payment of any dividend (or, in the case of any partnership or lim- ited liability company, any similar distribution) by a Restricted Subsidiary of Holdings to any class or classes of holders of its Equity Interests on a pro rata basis; (g) dividends or distributions to the Parent in connection with the making by the Parent of ordinary dividend payments in respect of its common stock in an ag- gregate amount not to exceed, in any period of two consecutive Fiscal Years (the “Dividend Period”), 75% of the aggregate Adjusted Net Income in respect of the two Fiscal Years ending at the end of the first Fiscal Year of the Dividend Period (and af- ter deducting from the dividends included in that calculation any dividends to the ex- tent such dividends are reinvested by the Parent in the Parent or any Subsidiary thereof (for the avoidance of any doubt, excluding the Excluded Entities) or are replaced pur- suant to an underwritten dividend reinvestment plan or equivalent program); (h) Investments in Unrestricted Subsidiaries having an aggregate fair mar- ket value, taken together with all other Investments made pursuant to this clause (h) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash and/or mar- ketable securities, not to exceed $250.0 million at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (i) to the extent constituting Restricted Payments, any AICF Payments; (j) other Restricted Payments if, at the time of the making of such pay- ments, and after giving effect thereto (including, without limitation, the incurrence of any Indebtedness to finance such payment), the Total Net Leverage Ratio would not exceed 3.50 to 1.00; (k) Restricted Payments under or in respect of hedge and warrant transac- tions entered into in connection with a convertible notes offering of Holdings or any Restricted Subsidiary (or any direct or indirect parent company of Holdings); provided that the proceeds of such offering are contributed to Holdings or such Restricted Sub- sidiary; (l) the declaration and payment of dividends by Holdings to, or the making of loans to, any direct or indirect parent company of Holdings in amounts required for any direct or indirect parent company to pay: (i) franchise and excise taxes and other fees and expenses required to maintain its organizational existence;
-75- (ii) with respect to any taxable year (or portion thereof) with respect to which Holdings is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Hold- ings is the common parent, foreign, federal, state and local income and similar taxes (including any interest or penalties related thereto) of such tax group, to the extent such taxes are attributable to the income, reve- nue, receipts, capital or margin of Holdings and its Restricted Subsidi- aries and, to the extent of the amount actually received from its Unre- stricted Subsidiaries in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that Holdings, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) would be re- quired to pay in respect of such foreign, federal, state and local income and similar taxes for such fiscal year had Holdings, its Restricted Sub- sidiaries and its Unrestricted Subsidiaries (to the extent described above) been a stand-alone taxpayer (separate from any such direct or indirect parent company of Holdings) for all fiscal years ending after the Issue Date; (iii) customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, future, current or former officers, employees, directors and managers and consultants of any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance and other benefits and indemnities are at- tributable to the ownership or operation of Holdings and the Restricted Subsidiaries, including Holdings’ and the Restricted Subsidiaries’ pro- portionate share of such amount relating to such parent company being a public company; (iv) general corporate or other operating (including, without limitation, expenses related to auditing or other accounting matters and listing fees and other costs and expenses attributable to being a public company) and overhead costs and expenses, of any direct or indirect parent company of Holdings; (v) amounts required for any direct or indirect parent com- pany of Holdings to pay fees and expenses incurred by any direct or in- direct parent company of Holdings related to transactions of such par- ent company of Holdings of the type described in clauses (8) and (11) of the definition of “Consolidated Net Income”; and
-83- (4) failure by the Issuer, Holdings or any Restricted Subsidiary for 60 con- secutive days after receipt of notice from the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes of such series then outstanding under this In- denture (with a copy to the Trustee) to comply with any covenant or agreement con- tained in this Indenture (other than the covenants and agreements specified in clauses (1) through (3) of this Section 6.01); (5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of Holdings or any Restricted Subsidiary or the payment of which is Guaranteed by Holdings or any Restricted Subsidiary (other than Indebtedness owed to the Parent, Holdings or a Restricted Subsidiary), whether such Indebtedness or Guarantee existed as of, or was created after, the Issue Date, which default (a) is caused by a failure to pay when due at final stated maturity (giving effect to any grace period related thereto) principal of such Indebtedness (a “Payment Default”) or (b) results in the acceleration of such Indebtedness prior to its stated maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any such In- debtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $100.0 million or more; (6) failure by Holdings or any Restricted Subsidiary that is a Significant Subsidiary (or group of Restricted Subsidiaries that, together, (as of the date of the lat- est audited consolidated financial statements of the Parent) would constitute a Signifi- cant Subsidiary) to pay final and non-appealable judgments (net of any amounts cov- ered by insurance and as to which such insurer has not denied responsibility or cover- age in writing) aggregating $100.0 million or more, which judgments are not paid, discharged, bonded, stayed or waived within 60 days after such judgment becomes fi- nal, and in the event such judgment is covered in full by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; (7) (A) a court of competent jurisdiction over the Issuer, Holdings or any Restricted Subsidiary enters (x) a decree or order for relief in respect of the Issuer, Holdings or any Restricted Subsidiary that is a Significant Subsidiary or group of Re- stricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (as of the date of the latest audited consolidated financial statements of the Parent) in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order ad- judging the Issuer, Holdings or any Restricted Subsidiary that is a Significant Subsidi- ary or group of Restricted Subsidiaries that, taken together, would constitute a Signifi- cant Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, Holdings or any such Restricted Subsidiary or group of Restricted Subsidiaries
-89- ARTICLE SEVEN TRUSTEE SECTION 7.01. Duties of Trustee. (a) If a Default or Event of Default actually known to a Responsible Of- ficer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person under the circumstances would exercise or use under the same circumstances in the conduct of his or her own affairs. Except for an Event of Default pursuant to Section 6.01(1) or 6.01(2) (upon the occurrence of which the Trustee if then acting as Paying Agent will be deemed to have knowledge thereof), the Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has received written notice of any event which is in fact such a Default or Event of Default by the Issuer or by the Holders of at least 25% of the aggregate principal amount of a series of Notes by written notice of such event sent to the Trustee in accordance with Section 11.02, and such notice references such series of Notes and this Indenture. (b) Except during the continuance of a Default or Event of Default of which a Responsible Officer of the Trustee has actual knowledge: (1) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee. (2) In the absence of bad faith on its part, the Trustee may conclusively re- ly, as to the truth of the statements and the correctness of the opinions expressed there- in, upon certificates or opinions furnished to the Trustee and conforming to the re- quirements of this Indenture but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may require and, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate.
-91- (1) The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper per- son. The Trustee need not investigate any fact or matter stated in the document. (2) Before the Trustee acts or refrains from acting, it may require and shall be entitled to receive an Officer’s Certificate or an Opinion of Counsel, or both, which shall conform to the provisions of Sections 11.04 and 11.05. The Trustee shall be pro- tected and shall not be liable for any action it takes or omits to take in good faith in re- liance on such certificate or opinion. (3) The Trustee may execute any of the trusts or powers hereunder or per- form any duties hereunder directly or indirectly or by or through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed by it with due care. (4) The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers; provided that the Trustee’s conduct does not constitute negligence or willful miscon- duct. (5) The Trustee may consult with counsel of its selection, at the expense of the Issuer, and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. (6) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated, reimbursed and in- demnified, are extended to, and shall be enforceable by, the Trustee in each of its ca- pacities hereunder (including but not limited to as Registrar, Paying Agent and Depos- itory Custodian), and each agent, custodian and other person employed to act hereun- der. (7) The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its own negligence or willful misconduct in the performance of such act. (8) The Trustee may from time to time request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers au- thorized at such time to take specified actions pursuant to this Indenture, which Of-
-97- (4) to secure the Notes of such series and the related Note Guarantees; (5) to release and discharge any Security Interest securing the Notes of such series and the related Note Guarantees when permitted by this Indenture (including pur- suant to the second paragraph under Section 4.11); (6) to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee or a successor paying agent thereunder pursuant to the requirements thereof; (7) to add any Guarantor or release any Guarantor from its Note Guarantee of such series of Notes if such release is in accordance with the terms of this Inden- ture; (8) to conform the text of this Indenture, the Notes, or the Note Guarantees to any provision of the “Description of the Notes” set forth in the Offering Memoran- dum to the extent that such provision in the “Description of the Notes” set forth in the Offering Memorandum was intended to be a verbatim recitation of a provision of this Indenture, the Notes, or the Note Guarantees, which intent may be evidenced by an Officer’s Certificate to that effect; (9) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided, howev- er, that such amendment does not materially and adversely affect the rights of Holders to transfer Notes of such series; (10) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon Holdings, the Issuer or any other Guarantor with respect to such series; (11) to provide for the issuance of Additional Notes of such series in ac- cordance with the limitations set forth in this Indenture as of the date hereof; (12) to make any change that would provide any additional rights or benefits to the Holders of Notes of such series or that does not adversely affect the rights under this Indenture of any Holder of Notes of such series in any material respect; or (13) to comply with the rules of any applicable securities depositary. After an amendment or supplement under this Section 8.01 becomes effective, the Issuer shall send to the Holders of the applicable series a notice briefly describing the amendment or supplement. Any failure of the Issuer to send such notice, or any defect there-
-101- ARTICLE NINE DISCHARGE OF INDENTURE; DEFEASANCE; GUARANTEE SECTION 9.01. Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes and Note Guarantees of a series, and the Trustee, at the expense and upon the written request of the Issuer, will execute proper instruments acknowledging satisfaction and dis- charge of this Indenture, the Notes and the Note Guarantees of such series, when all amounts due to the Trustee shall have been paid and either: (1) the Issuer delivers to the Trustee all outstanding Notes of such series is- sued under this Indenture (other than (i) Notes of such series which have been de- stroyed, lost or stolen and which have been replaced or paid as provided in Sec- tion 2.08 hereof and (ii) Notes of such series for whose payment money has thereto- fore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) for cancellation; or (2) (a) all Notes of such series outstanding under this Indenture (I) have become due and payable, whether at maturity or as a result of the sending of a notice of redemption, or (II) will become due and payable within one year, or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor irrevocably deposits with the Trustee as trust funds in trust solely for the benefit of the Holders of Notes of such se- xxxx, cash in U.S. Dollars, U.S. Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of, premium, if any, and interest on the Notes of such series outstanding under this Indenture on the maturity date or on the applicable Re- demption Date, as the case may be; (b) no Default or Event of Default (other than re- sulting from the granting of any Security Interests securing any borrowing of funds to be applied to make such deposit) shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit shall not result in a breach or violation of, or constitute a default (other than resulting from the grant- ing of any Security Interests securing any borrowing of funds to be applied to make such deposit) under, any Credit Facilities or other material agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound; (c) the Issuer or any Guarantor has paid or caused to be paid all sums payable by the Issuer or any Guarantor under this Inden- ture; and (d) the Issuer have delivered (I) irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of such
-102- series at maturity or the applicable Redemption Date, as the case may be, and (II) an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions xxxxx- xxxx herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series of Notes have been complied with and that such satisfaction and discharge does not result in a default under any agreement or instrument then known to such counsel which binds or affects the Issuer. Notwithstanding the satisfaction and discharge of this Indenture, the obliga- tions of the Issuer in Article Two and in Sections 4.01, 4.02, 7.07, 9.05 and 9.06 shall survive such satisfaction and discharge (in the case of obligations under Article Two, Sections 4.01 and 4.02, until the Notes of such series are no longer outstanding). SECTION 9.02. Legal Defeasance. The Issuer may, at its option and at any time, elect to have all of its obligations and the obligations of the Guarantors with respect to a series of Notes discharged with respect to this Indenture, the outstanding Notes of such series and the Note Guarantees of such series on a date the conditions set forth in Section 9.04 are satisfied (hereinafter, “Legal Xxxxx- xxxxx”). For this purpose, such Legal Defeasance means that the Issuer will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes of a series and to have satisfied all their other obligations under such Notes and this Indenture in- sofar as such Notes are concerned (and the Trustee, at the expense of the Issuer, shall, subject to Section 9.06, execute instruments in form and substance reasonably satisfactory to the Trustee and the Issuer acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of the Holders of the outstanding Notes of such series to re- ceive solely from the trust described in Section 9.04 and as more fully set forth in Sec- tion 9.04, payments in respect of the principal amount of, premium, if any, and interest on such Notes when such payments are due, (2) the Issuer’s obligations with respect to issuing temporary Notes of such series, registration of Notes or mutilated, destroyed, lost or stolen Notes, in each case under Article Two and Section 4.02, (3) the rights, powers, trusts, duties, and immunities of the Trustee hereun- der (including claims of, or payments to, the Trustee under or pursuant to Section 7.07) and the Issuer’s obligations in connection therewith, and (4) this Article Nine. Concurrently with any Legal Defeasance, the Issuer may, at its further option, cause to be terminated, as of the date on which such Legal Defeasance occurs, all of the obli-
-103- gations under any or all of the Note Guarantees, if any, then existing and obtain the release of the Note Guarantees of any or all Guarantors. In order to exercise such option regarding a Note Guarantee, the Issuer shall provide the Trustee with written notice of their desire to ter- minate such Note Guarantee prior to the delivery of the Opinions of Counsel referred to in Section 9.04. Subject to compliance with this Article Nine, the Issuer may exercise its option under this Section 9.02 with respect to the Notes of a series notwithstanding the prior exercise of its option under Section 9.03 below with respect to the Notes of such series. SECTION 9.03. Covenant Defeasance. The Issuer may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors under Sections 4.01(c), 4.03, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 4.14 and Section 5.01(a) released with respect to the outstanding Notes of a series on a date the conditions set forth in Section 9.04 are satisfied (hereinafter, “Covenant Defeasance”). For this purpose, Covenant Defeasance means that, with respect to the out- standing Notes of a series, the Issuer may fail to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Sec- tion 6.01, but, except as specified above, the remainder of this Indenture, the Notes and the Note Guarantees of such series shall be unaffected thereby. In addition, upon the Issuer’s ex- ercise of the option in this Section 9.03, subject to the satisfaction of the conditions set forth in Section 9.04, Sections 6.01(3), (4), (5), (6) and (8) shall not constitute Events of Default with respect to such series. Notwithstanding any discharge or release of any obligations under this Inden- ture pursuant to Section 9.02 or this Section 9.03, the Issuer’s obligations in Article Two and Sections 7.07, 9.05, 9.06, 9.07 and 9.08 shall survive until such time as the Notes of such se- xxxx have been paid in full. Thereafter, the Issuer’s obligations in Sections 7.07, 9.05, 9.07 and 9.08 shall survive. SECTION 9.04. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 9.02 or Section 9.03 to the outstanding Notes of any series: (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes of such series issued under this Indenture, cash in U.S. Dollars, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent
-104- public accountants (such opinion shall be delivered to the Trustee, and upon which the Trustee shall have no liability in relying), to pay the principal, premium, if any, and in- terest on the Notes of such series outstanding under this Indenture on the stated ma- turity or on the applicable Redemption Date, as the case may be, and the Issuer must specify whether such Notes are being defeased to maturity or to a particular Redemp- tion Date; (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States (upon which the Trustee shall have no liability in relying) confirming that subject to customary assumptions and exclu- sions, (a) the Issuer has received from, or there has been published by, the U.S. Inter- nal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Notes of such series outstanding under this Indenture will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States (upon which the Trustee shall have no liability in relying) confirming that subject to customary assumptions and ex- clusions, the Holders of the Notes of such series outstanding under this Indenture will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default with respect to such series shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the granting of Liens in connection therewith) or insofar as Events of Default from bank- ruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instru- ment (other than this Indenture) to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound; (6) the Issuer must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of Notes of such series issued under this Indenture over the other creditors of the Issuer
-105- with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and (7) the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, subject to customary assumptions and exclusions, each stating that all conditions precedent provided for relating to the Legal Defeasance or the Cov- enant Defeasance have been complied with. SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust. All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.04 in respect of the outstanding Notes of the applicable series shall be held in trust and applied by the Trustee, in accordance with the pro- visions of such Notes and this Indenture, to the payment, either directly or through any Paying Agents, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and accrued interest, but such money need not be segregated from other funds except to the extent required by law. The Issuer and the Guarantors shall (on a joint and several basis) pay and in- demnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.04 or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes of such series. Anything in this Article Nine to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon a written request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 9.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certi- fication thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. SECTION 9.06. Reinstatement. If the Trustee or any Paying Agent is unable to apply any money or U.S. Gov- ernment Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason of any legal pro- ceeding or by reason of any order or judgment of any court or governmental authority enjoin- ing, restraining or otherwise prohibiting such application, each Issuer’s and each Guarantor’s obligations under this Indenture, the applicable series of Notes and the applicable series of Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to this Article Nine until such time as the Trustee or such Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.01; provided that if the Issuer or the Guarantors have made any payment of principal of, premium, if any, or
-106- accrued interest on any Notes of any series because of the reinstatement of their obligations, the Issuer or the Guarantors, as the case may be, shall be subrogated to the rights of the Hold- ers of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or any Paying Agent. SECTION 9.07. Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture, all moneys and U.S. Government Obligations then held by any Paying Agent under the provisions of this Indenture shall, upon written demand of the Issuer, be paid or delivered to the Trustee, or if sufficient moneys and U.S. Government Obligations have been deposited pursuant to Section 9.04, to the Issuer upon a request of the Issuer (or, if such moneys and U.S. Government Ob- ligations had been deposited by the Guarantors, to such Guarantors), and thereupon such Pay- ing Agent shall be released from all further liability with respect to such moneys. SECTION 9.08. Moneys Held by Trustee. Any moneys and U.S. Government Obligations deposited with the Trustee or any Paying Agent or then held by the Issuer or the Guarantors in trust for the payment of the principal of, or premium, if any, or interest on any Note that are not applied but remain un- claimed by the Holder of such Note for two years after the date upon which the principal of, or premium, if any, or interest on such Note shall have respectively become due and payable shall be repaid or returned to the Issuer (or, if appropriate, the Guarantors) upon a written re- quest of the Issuer, or if such moneys and U.S. Government Obligations are then held by the Issuer or the Guarantors in trust, such moneys and U.S. Government Obligations shall be re- leased from such trust; and the Holder of such Note entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Issuer and the Guarantors for the payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust moneys and U.S. Government Obligations shall thereupon cease. ARTICLE TEN GUARANTEE OF SECURITIES SECTION 10.01. Guarantee. The Guarantors, by execution of this Indenture, jointly and severally, guarantee to each Holder and to the Trustee (i) the due and punctual payment of the principal of, premi- um, if any, and interest on each Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest on the Notes, to the extent lawful, and the due and punc- tual payment of all other obligations and due and punctual performance of all obligations of
-112- With copies to: Deutsche Bank Trust Company Americas c/o Deutsche Bank National Trust Company Trust Agency Services 000 Xxxxx Xxx, 0xx Xxxxx XX: JCY03-0801 Jersey City, New Jersey 07311 Facsimile: 000-000-0000 Attention: Corporates Team Deal Manager – Xxxxx Xxxxxx Internation- al Finance Designated Activity Company The Issuer, the Guarantors or the Trustee by written notice to the others may designate additional or different addresses for subsequent notices or communications. All notices and communications (other than those sent to Holders) shall be deemed to have been duly given at the time delivered by hand, if personally delivered; five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee); when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. The Trustee agrees to accept and act upon instructions, directions, reports, no- tices and other communications or information pursuant to this Indenture sent by unsecured electronic transmissions (including email and .pdf attachments); provided that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained directly or indirectly by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communica- tions or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communica- tions or information to the Trustee, including the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of intercep- tion and misuse by third parties. If the party elects to give the Trustee email or facsimilie in- structions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
-114- (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or inves- tigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, it or he has made such examination or investigation as is necessary to enable it or him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with. SECTION 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or meetings of Notehold- ers. The Registrar and Paying Agent may make reasonable rules and set reasonable require- ments for their functions. SECTION 11.07. Business Days; Legal Holidays. A “Business Day” is a day that is not a Legal Holiday. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banks in The City of New York, the State of New York are authorized or required by law to close. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. SECTION 11.08. Governing Law. This Indenture, the Notes and the Note Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York. SECTION 11.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan, security or debt agreement of the Issuer or any Subsidiary thereof. No such indenture, loan, security or debt agreement may be used to interpret this Indenture. SECTION 11.10. Successors. All agreements of the Issuer and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee, any additional trustee and any Agents in this Indenture shall bind its successor.
EXHIBIT A-1 [FORM OF RESTRICTED NOTE] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY 4.75% SENIOR NOTE DUE 2025 [Insert Global Note Legend, if applicable] [Insert Private Placement Legend] [Insert Regulation S Legend, if applicable] [Insert ERISA Legend] No. [ ] CUSIP No. [ ] ISIN No. [ ] $[ ] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY, a private designated activity company duly incorporated under the laws of Ire- land (the “Issuer”), for value received promises to pay to Cede & Co. or registered assigns the principal sum of [ ] (or such other principal amount as shall be set forth in the Schedule of Exchanges of Interests in Global Note attached hereto), on January 15, 2025. Interest Payment Dates: January 15 and July 15, commencing July 15, 2018. Record Dates: January 1 and July 1 (whether or not a Business Day). Reference is made to the further provisions of this 2025 Note contained herein, which will for all purposes have the same effect as if set forth at this place. A-1-1
Certificate of Authentication This is one of the 4.75% Senior Notes due 2025 referred to in the within- mentioned Indenture. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee By: Authorized Signatory Dated: A-1-3
ASSIGNMENT I or we assign and transfer this 2025 Note to: (Insert assignee’s social security or tax I.D. number) (Print or type name, address and zip code of assignee) and irrevocably appoint Agent to transfer this 2025 Note on the books of the Issuer. The Agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the other side of this 2025 Note) Signature Guarantee: ______________________________ SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-1-11
OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all or any part of this 2025 Note purchased by the Issuer pursuant to Section 4.08 or Section 4.09 of the Indenture, check the appropriate box: Section 4.08 Section 4.09 If you want to have only part of the 2025 Note purchased by the Issuer pursu- ant to Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have pur- chased: $ ($200,000 or any integral multiple of $1,000 in excess thereof; provided that the part not purchased must be at least $200,000) Date: Your Signature: ___________________________________ (Sign exactly as your name appears on the face of this 2025 Note) Signature Guaranteed SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-1-12
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE* The following exchanges of a part of this Global Note for an interest in another Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest in this Global Note, have been made: Principal Amount Amount of decrease in Amount of increase in of this Global Note Principal Amount Principal Amount following such de- of of crease Signature of authorized Date of Exchange this Global Note this Global Note (or increase) signatory of Trustee * Insert in Global Securities only. A-1-13
EXHIBIT A-2 [FORM OF RESTRICTED NOTE] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY 5.00% SENIOR NOTE DUE 2028 [Insert Global Note Legend, if applicable] [Insert Private Placement Legend] [Insert Regulation S Legend, if applicable] [Insert ERISA Legend] No. [ ] CUSIP No. [ ] ISIN No. [ ] $[ ] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY, a private designated activity company duly incorporated under the laws of Ire- land (the “Issuer”), for value received promises to pay to Cede & Co. or registered assigns the principal sum of [ ] (or such other principal amount as shall be set forth in the Schedule of Exchanges of Interests in Global Note attached hereto), on January 15, 2028. Interest Payment Dates: January 15 and July 15, commencing July 15, 2018. Record Dates: January 1 and July 1 (whether or not a Business Day). Reference is made to the further provisions of this 2028 Note contained herein, which will for all purposes have the same effect as if set forth at this place. A-2-1
Certificate of Authentication This is one of the 5.00% Senior Notes due 2028 referred to in the within- mentioned Indenture. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee By: Authorized Signatory Dated: A-2-3
ASSIGNMENT I or we assign and transfer this 2028 Note to: (Insert assignee’s social security or tax I.D. number) (Print or type name, address and zip code of assignee) and irrevocably appoint Agent to transfer this 2028 Note on the books of the Issuer. The Agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the other side of this 2028 Note) Signature Guarantee: ______________________________ SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-2-11
OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all or any part of this 2028 Note purchased by the Issuer pursuant to Section 4.08 or Section 4.09 of the Indenture, check the appropriate box: Section 4.08 Section 4.09 If you want to have only part of the 2028 Note purchased by the Issuer pursu- ant to Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have pur- chased: $ ($200,000 or any integral multiple of $1,000 in excess thereof; provided that the part not purchased must be at least $200,000) Date: Your Signature: ___________________________________ (Sign exactly as your name appears on the face of this 2028 Note) Signature Guaranteed SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-2-12
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE* The following exchanges of a part of this Global Note for an interest in another Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest in this Global Note, have been made: Principal Amount Amount of decrease in Amount of increase in of this Global Note Principal Amount Principal Amount following such de- of of crease Signature of authorized Date of Exchange this Global Note this Global Note (or increase) signatory of Trustee * Insert in Global Securities only. A-2-13
EXHIBIT A-3 [FORM OF UNRESTRICTED NOTE] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY 4.75% SENIOR NOTE DUE 2025 [Insert Global Note Legend, if applicable] [Insert ERISA Legend] No. [ ] CUSIP No. [ ] ISIN No. [ ] $[ ] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY, a private designated activity company duly incorporated under the laws of Ire- land (the “Issuer”), for value received promises to pay to Cede & Co. or registered assigns the principal sum of [ ] (or such other principal amount as shall be set forth in the Schedule of Exchanges of Interests in Global Note attached hereto), on January 15, 2025. Interest Payment Dates: January 15 and July 15, commencing July 15, 2018. Record Dates: January 1 and July 1 (whether or not a Business Day). Reference is made to the further provisions of this 2025 Note contained herein, which will for all purposes have the same effect as if set forth at this place. A-3-1
Certificate of Authentication This is one of the 4.75% Senior Notes due 2025 referred to in the within- mentioned Indenture. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee By: Authorized Signatory Dated: A-3-3
ASSIGNMENT I or we assign and transfer this 2025 Note to: (Insert assignee’s social security or tax I.D. number) (Print or type name, address and zip code of assignee) and irrevocably appoint Agent to transfer this 2025 Note on the books of the Issuer. The Agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the other side of this 2025 Note) Signature Guarantee: ______________________________ SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-3-11
OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all or any part of this 2025 Note purchased by the Issuer pursuant to Section 4.08 or Section 4.09 of the Indenture, check the appropriate box: Section 4.08 Section 4.09 If you want to have only part of the 2025 Note purchased by the Issuer pursu- ant to Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have pur- chased: $ ($200,000 or any integral multiple of $1,000 in excess thereof; provided that the part not purchased must be at least $200,000) Date: Your Signature: ___________________________________ (Sign exactly as your name appears on the face of this 2025 Note) Signature Guaranteed SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-3-12
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE* The following exchanges of a part of this Global Note for an interest in another Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest in this Global Note, have been made: Principal Amount Amount of decrease in Amount of increase in of this Global Note Principal Amount Principal Amount following such de- of of crease Signature of authorized Date of Exchange this Global Note this Global Note (or increase) signatory of Trustee * Insert in Global Securities only. A-3-13
EXHIBIT A-4 [FORM OF UNRESTRICTED NOTE] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY 5.00% SENIOR NOTE DUE 2028 [Insert Global Note Legend, if applicable] [Insert ERISA Legend] No. [ ] CUSIP No. [ ] ISIN No. [ ] $[ ] XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY, a private designated activity company duly incorporated under the laws of Ire- land (the “Issuer”), for value received promises to pay to Cede & Co. or registered assigns the principal sum of [ ] (or such other principal amount as shall be set forth in the Schedule of Exchanges of Interests in Global Note attached hereto), on January 15, 2028. Interest Payment Dates: January 15 and July 15, commencing July 15, 2018. Record Dates: January 1 and July 1 (whether or not a Business Day). Reference is made to the further provisions of this 2028 Note contained herein, which will for all purposes have the same effect as if set forth at this place. A-4-1
Certificate of Authentication This is one of the 5.00% Senior Notes due 2028 referred to in the within- mentioned Indenture. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee By: Authorized Signatory Dated: A-4-3
ASSIGNMENT I or we assign and transfer this 2028 Note to: (Insert assignee’s social security or tax I.D. number) (Print or type name, address and zip code of assignee) and irrevocably appoint Agent to transfer this 2028 Note on the books of the Issuer. The Agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the other side of this 2028 Note) Signature Guarantee: ______________________________ SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-4-11
OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all or any part of this 2028 Note purchased by the Issuer pursuant to Section 4.08 or Section 4.09 of the Indenture, check the appropriate box: Section 4.08 Section 4.09 If you want to have only part of the 2028 Note purchased by the Issuer pursu- ant to Section 4.08 or Section 4.09 of the Indenture, state the amount you elect to have pur- chased: $ ($200,000 or any integral multiple of $1,000 in excess thereof; provided that the part not purchased must be at least $200,000) Date: Your Signature: ___________________________________ (Sign exactly as your name appears on the face of this 2028 Note) Signature Guaranteed SIGNATURE GUARANTEE Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guaran- tee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-4-12
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE* The following exchanges of a part of this Global Note for an interest in another Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest in this Global Note, have been made: Principal Amount Amount of decrease in Amount of increase in of this Global Note Principal Amount Principal Amount following such de- of of crease Signature of authorized Date of Exchange this Global Note this Global Note (or increase) signatory of Trustee * Insert in Global Securities only. A-4-13
EXHIBIT B [FORM OF LEGEND FOR RESTRICTED SECURITIES] Any Restricted Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Global Note) in substantially the following form: THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S] ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IN ACCORDANCE WITH ANOTHER B-1
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND IN THE CASE OF CLAUSES (1)(b) AND (c), BASED UPON AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION ACCEPTABLE TO THE ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER, A GUARANTOR OR A SUBSIDIARY THEREOF OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. B-2
EXHIBIT C [FORM OF ERISA LEGEND] Any Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Note or Global Note) in substantially the following form: BY ITS ACQUISITION OF THIS SECURITY OR ANY INTEREST THEREIN, THE PURCHASER OR HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED TO THE ISSUER, THE INITIAL PURCHASERS AND EACH OF THEIR RESPECTIVE AFFILIATES THAT EITHER (A) NO PORTION OF THE ASSETS USED BY SUCH PURCHASER OR HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “INTERNAL REVENUE CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS, RULES OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE INTERNAL REVENUE CODE (“SIMILAR LAWS”), AND OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT (EACH, A “PLAN”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS. ADDITIONALLY, IF ANY PURCHASER OR HOLDER OF THIS SECURITY IS USING ASSETS OF ANY PLAN SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE ( AN “ERISA PLAN”) TO ACQUIRE OR HOLD THIS SECURITY, SUCH PURCHASER OR HOLDER WILL BE DEEMED TO REPRESENT THAT TO THE ISSUER, THE INITIAL PURCHASERS AND EACH OF THEIR RESPECTIVE AFFILIATES (A) NEITHER THE ISSUER, THE INITIAL PURCHASERS NOR ANY OF THEIR RESPECTIVE AFFILIATES HAS ACTED AS THE ERISA PLAN’S FIDUCIARY, OR HAS BEEN RELIED UPON FOR ANY ADVICE, WITH RESPECT TO THE ERISA PLAN’S DECISION TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN AND NEITHER THE ISSUER, THE INITIAL PURCHASERS NOR ANY OF THEIR RESPECTIVE AFFILIATES SHALL AT ANY TIME BE RELIED UPON AS THE ERISA PLAN’S C-1
LEAST $50 MILLION, AND WILL AT ALL TIMES THAT SUCH ERISA PLAN HOLDS AN INTEREST IN THIS SECURITY, HOLD OR HAVE UNDER MANAGEMENT OR CONTROL, TOTAL ASSETS OF AT LEAST $50 MILLION; AND (5) IS AWARE OF AND ACKNOWLEDGES THAT (I) NEITHER THE ISSUER, THE INITIAL PURCHASERS NOR ANY OF THEIR RESPECTIVE AFFILIATES IS UNDERTAKING TO PROVIDE IMPARTIAL INVESTMENT ADVICE, OR TO GIVE ADVICE IN A FIDUCIARY CAPACITY, IN CONNECTION WITH THE ERISA PLAN’S INVESTMENT IN THIS SECURITY, (II) THE ISSUER AND ITS AFFILIATES HAVE A FINANCIAL INTEREST IN THE ERISA PLAN’S INVESTMENT IN THIS SECURITY AND (III) THE INITIAL PURCHASERS HAVE RECEIVED OR WILL RECEIVE COMPENSATION IN THE FORM OF CUSTOMARY DISCOUNTS AND COMMISSIONS IN CONNECTION WITH THE OFFERING OF THIS SECURITY. NOTWITHSTANDING THE FOREGOING, ANY ERISA PLAN WHICH IS AN INDIVIDUAL RETIREMENT ACCOUNT THAT IS NOT REPRESENTED BY AN INDEPENDENT FIDUCIARY SHALL NOT BE DEEMED TO HAVE MADE TO THE ISSUER AND ITS AFFILIATES THE REPRESENTATION IN CLAUSE (C) ABOVE. C-3
EXHIBIT D [FORM OF LEGEND FOR GLOBAL NOTE] Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Note) in substantially the following form: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. D-1
EXHIBIT E [FORM OF LEGEND FOR REGULATION S NOTE] Any Regulation S Note authenticated and delivered hereunder shall bear a leg- end (which would be in addition to any other legends required in the case of a Restricted Note) in substantially the following form: “BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.” E-1
EXHIBIT F FORM OF CERTIFICATE OF TRANSFER Xxxxx Xxxxxx International Finance Designated Activity Company Europa House 2nd Floor Harcourt Centre, Harcourt Street Dublin 2, Ireland Facsimile: x000-0-000-0000 E-mail: xxxxxxxx@xxxxxxxxxxx.xxx Attention: The Treasurer Deutsche Bank Trust Company Americas c/o DB Services Americas, Inc. 0000 Xxxx Xxxxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000 Attention: Transfer Department re: Xxxxx Xxxxxx International Finance Designated Activity Company Re: [4.75% Senior Notes due 2025] [5.00% Senior Notes due 2028] (CUSIP _________________) (ISIN ___________________) Reference is hereby made to the Indenture, dated as of December 13, 2017 (the “Indenture”), by and among Xxxxx Xxxxxx International Finance Designated Activity Company (the “Issu- er”), the Guarantors and Deutsche Bank Trust Company Americas, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ______________ (the “Transferor”) owns and proposes to transfer the [2025][2028] Note[s] or interest in such [2025][2028] Note[s] specified in Annex A hereto, in the principal amount of ___________ in such [2025][2028] Note[s] or interests (the “Trans- fer”), to __________ (the “Transferee”), as further specified in Annex A hereto. In connec- tion with the Transfer, the Transferor hereby certifies that: [CHECK ALL THAT APPLY] 1. Check if Transferee will take delivery of a beneficial interest in a Rule 144A Global Note or a Physical Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies F-1
that the beneficial interest or Physical Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Physical Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Physical Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Rule 144A Global Note and/or the Physical Note and in the Indenture and the Securities Act. 2. Check if Transferee will take delivery of a beneficial interest in a Regulation S Global Note or a Physical Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, ac- cordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasona- xxx believed and believes that the Transferee was outside the United States or (y) the transac- tion was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration re- quirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Physical Note will be subject to the restrictions on Transfer enumerated in the Pri- vate Placement Legend printed on the Regulation S Global Note and/or the Physical Note and in the Indenture and the Securities Act. 3. Check and complete if Transferee will take delivery of a beneficial interest in the Global Note or a Physical Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Physical Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one): (a) such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or (b) such Transfer is being effected to the Issuer or a Subsidiary thereof; F-2
or (c) such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery re- quirements of the Securities Act; or (d) such Transfer is being effected pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Physical Notes and the requirements of the ex- emption claimed, which certification is supported by, if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Physical Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Global Note and/or the Physical Notes and in the Indenture and the Se- curities Act. 4. Check if Transferee will take delivery of a beneficial interest in an Unrestrict- ed Global Note or an Unrestricted Physical Note. (a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer con- tained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accord- ance with the terms of the Indenture, the transferred beneficial interest or Physical Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Leg- end printed on the Restricted Global Notes, on Restricted Physical Notes and in the Indenture. (b) Check if Transfer is pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securi- ties Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Trans- fer in accordance with the terms of the Indenture, the transferred beneficial interest or Physi- cal Note will no longer be subject to the restrictions on transfer enumerated in the Private F-3
Placement Legend printed on the Restricted Global Notes, on Restricted Physical Notes and in the Indenture. (c) Check if Transfer is pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registra- tion requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer con- tained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accord- ance with the terms of the Indenture, the transferred beneficial interest or Physical Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Physical Notes and in the Indenture. (d) Check if Transfer is pursuant to an Effective Registration Statement. (i) The Transfer is being effected pursuant to and in compliance with an effec- tive registration statement under the Securities Act and any applicable blue sky securities laws of any State of the United States and in compliance with the prospectus delivery requirements of the Securities Act and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the In- denture, the transferred beneficial interest or Physical Note will not be subject to the re- strictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Physical Notes and in the Indenture. This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. [Insert Name of Transferor] By: Name: Title: Dated: F-4
ANNEX A TO CERTIFICATE OF TRANSFER 1. The Transferor owns and proposes to transfer the following: [CHECK ONE] (a) a beneficial interest in a: (i) Rule 144A Global Note (CUSIP _______________) (ISIN ________________), or (ii) Regulation S Global Note (CUSIP _______________) (ISIN ________________), or (b) a Restricted Physical Note. 2. After the Transfer the Transferee will hold: [CHECK ONE] (a) a beneficial interest in the: (i) Rule 144A Global Note (CUSIP _______________) (ISIN ________________), or (ii) Regulation S Global Note (CUSIP _______________) (ISIN ________________), or (iii) Unrestricted Global Note (CUSIP _______________) (ISIN ________________), or (b) a Restricted Physical Note; or (c) an Unrestricted Physical Note, in accordance with the terms of the Indenture. F-5
EXHIBIT G FORM OF CERTIFICATE OF EXCHANGE Xxxxx Xxxxxx International Finance Designated Activity Company Europa House 2nd Floor Harcourt Centre, Harcourt Street Dublin 2, Ireland Facsimile: x000-0-000-0000 E-mail: xxxxxxxx@xxxxxxxxxxx.xxx Attention: The Treasurer Deutsche Bank Trust Company Americas c/o DB Services Americas, Inc. 0000 Xxxx Xxxxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000 Attention: Transfer Department re: Xxxxx Xxxxxx International Finance Designated Activity Company Re: [4.75% Senior Notes due 2025] [5.00% Senior Notes due 2028] (CUSIP__________________) (ISIN ___________________) Reference is hereby made to the Indenture, dated as of December 13, 2017 (the “Indenture”), by and among Xxxxx Xxxxxx International Finance Designated Activity Company (the “Issu- er”), the Guarantors and Deutsche Bank Trust Company Americas, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ____________ (the “Owner”) owns and proposes to exchange the [2025][2028] Note[s] or interest in such [2025][2028] Note[s] specified herein, in the princi- pal amount of ____________ in such [2025][2028] Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that: 1. Exchange of Restricted Physical Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Physical Notes or Beneficial Interests in an Unrestricted Global Note (a) Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial inter- G-1
Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. G-3
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. [Insert Name of Owner] By: Name: Title: Dated: ________________ G-4
EXHIBIT H GUARANTEES Each of the undersigned (the “Guarantors”) hereby jointly and severally un- conditionally guarantees, to the extent set forth in the Indenture, dated as of December 13, 2017, by and among Xxxxx Xxxxxx International Finance Designated Activity Company (the “Issuer”), the Guarantors and Deutsche Bank Trust Company Americas, as trustee (as amend- ed, restated or supplemented from time to time, the “Indenture”), and subject to the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and interest on the Notes, when and as the same shall become due and payable, whether at maturity, by accelera- tion or otherwise, the due and punctual payment of interest on overdue principal of, and pre- mium and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Issuer to the Noteholders or the Trustee, all in accordance with the terms set forth in Sections 10.01 through 10.06 of the Indenture, (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the ex- tension or renewal, whether at stated maturity, by acceleration or otherwise and (c) all amounts due to the Trustee pursuant to the Indenture. The obligations of the Guarantors to the Noteholders and to the Trustee pursu- ant to this Guarantee and the Indenture are expressly set forth in Sections 10.01 through 10.06 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limi- tations of this Guarantee. Each Holder of the Note to which this Guarantee is endorsed, by accepting such Note, agrees to and shall be bound by such provisions. [Signatures on Following Pages] H-1
XXXXX XXXXXX INTERNATIONAL FINANCE DESIGNATED ACTIVITY COMPANY By: Name: Title: [EXISTING GUARANTORS] By: Name: Title: DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee By: Name: Title: By: Name: Title: I-3