INDENTURE Dated as of April 21, 2015 Among CONCORDIA HEALTHCARE CORP. THE GUARANTORS PARTY HERETO and U.S. BANK NATIONAL ASSOCIATION, as Trustee 7.000% SENIOR NOTES DUE 2023
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INDENTURE
Dated as of April 21, 2015
Among
CONCORDIA HEALTHCARE CORP.
THE GUARANTORS PARTY HERETO
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
7.000% SENIOR NOTES DUE 2023
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ................................. 1
Section 1.01 Definitions................................................................................................... 1
Section 1.02 Other Definitions ...................................................................................... 44
Section 1.03 Rules of Construction ............................................................................... 45
Section 1.04 Acts of Holders ......................................................................................... 46
ARTICLE 2 THE NOTES ............................................................................................................ 48
Section 2.01 Form and Dating; Terms ........................................................................... 48
Section 2.02 Execution and Authentication ................................................................... 50
Section 2.03 Registrar and Paying Agent ...................................................................... 51
Section 2.04 Paying Agent to Hold Money in Trust ...................................................... 51
Section 2.05 Holder Lists ............................................................................................... 52
Section 2.06 Transfer and Exchange ............................................................................. 52
Section 2.07 Replacement Notes ................................................................................... 66
Section 2.08 Outstanding Notes ..................................................................................... 66
Section 2.09 Treasury Notes .......................................................................................... 67
Section 2.10 Temporary Notes ...................................................................................... 67
Section 2.11 Cancellation .............................................................................................. 67
Section 2.12 Defaulted Interest ...................................................................................... 68
Section 2.13 Additional Amounts .................................................................................. 68
Section 2.14 CUSIP and ISIN Numbers ........................................................................ 71
Section 2.15 Computation of Interest ............................................................................ 71
ARTICLE 3 REDEMPTION ........................................................................................................ 72
Section 3.01 Notices to Trustee ..................................................................................... 72
Section 3.02 Selection of Notes to Be Redeemed or Purchased .................................... 72
Section 3.03 Notice of Redemption ............................................................................... 73
Section 3.04 Effect of Notice of Redemption ................................................................ 74
Section 3.05 Deposit of Redemption or Purchase Price ................................................ 74
Section 3.06 Notes Redeemed or Purchased in Part ...................................................... 74
Section 3.07 Optional Redemption ................................................................................ 75
Section 3.08 Mandatory Redemption; Open Market Purchases .................................... 76
Section 3.09 Tax Redemption ........................................................................................ 76
ARTICLE 4 COVENANTS ......................................................................................................... 77
Section 4.01 Payment of Notes ...................................................................................... 77
Section 4.02 Maintenance of Office or Agency ............................................................. 77
Section 4.03 Reports and Other Information ................................................................. 78
Section 4.04 Compliance Certificate ............................................................................. 80
Section 4.05 Taxes ......................................................................................................... 81
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Section 4.06 Stay, Extension and Usury Laws .............................................................. 81
Section 4.07 Restricted Payments .................................................................................. 81
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries ............................................................................................... 85
Section 4.09 Incurrence of Debt .................................................................................... 88
Section 4.10 Asset Sales ................................................................................................ 89
Section 4.11 Transactions with Affiliates ...................................................................... 92
Section 4.12 Liens .......................................................................................................... 94
Section 4.13 Corporate Existence .................................................................................. 94
Section 4.14 Change of Control ..................................................................................... 95
Section 4.15 Additional Note Guarantees ...................................................................... 96
Section 4.16 Sale and Leaseback Transactions .............................................................. 96
Section 4.17 Business Activities .................................................................................... 97
Section 4.18 Creation of Unrestricted Subsidiaries ....................................................... 97
Section 4.19 Covenant Suspension on Investment Grade Rating .................................. 98
ARTICLE 5 SUCCESSORS ........................................................................................................ 99
Section 5.01 Merger, Amalgamation, Arrangement, Consolidation or Sale of All or
Substantially All Assets ............................................................................ 99
Section 5.02 Surviving Entity Substituted ................................................................... 101
ARTICLE 6 DEFAULTS AND REMEDIES............................................................................. 101
Section 6.01 Events of Default .................................................................................... 101
Section 6.02 Acceleration ............................................................................................ 104
Section 6.03 Other Remedies ....................................................................................... 104
Section 6.04 Waiver of Past Defaults .......................................................................... 104
Section 6.05 Control by Majority ................................................................................ 105
Section 6.06 Limitation on Suits .................................................................................. 105
Section 6.07 Rights of Holders to Receive Payment ................................................... 106
Section 6.08 Collection Suit by Trustee ...................................................................... 106
Section 6.09 Restoration of Rights and Remedies ....................................................... 106
Section 6.10 Rights and Remedies Cumulative ........................................................... 106
Section 6.11 Delay or Omission Not Waiver............................................................... 107
Section 6.12 Trustee May File Proofs of Claim. ......................................................... 107
Section 6.13 Priorities .................................................................................................. 107
Section 6.14 Undertaking for Costs ............................................................................. 108
ARTICLE 7 TRUSTEE .............................................................................................................. 108
Section 7.01 Duties of Trustee ..................................................................................... 108
Section 7.02 Rights of Trustee ..................................................................................... 109
Section 7.03 Individual Rights of Trustee ................................................................... 111
Section 7.04 Trustee’s Disclaimer ............................................................................... 111
Section 7.05 Notice of Defaults ................................................................................... 112
Section 7.06 Reports by Trustee to Holders of the Notes ............................................ 112
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Section 7.07 Compensation and Indemnity ................................................................. 112
Section 7.08 Replacement of Trustee .......................................................................... 113
Section 7.09 Successor Trustee by Merger .................................................................. 114
Section 7.10 Eligibility; Disqualification .................................................................... 114
Section 7.11 Preferential Collection of Claims Against the Company ........................ 115
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE ............................ 115
Section 8.01 Legal Defeasance .................................................................................... 115
Section 8.02 Covenant Defeasance .............................................................................. 116
Section 8.03 Conditions to Legal or Covenant Defeasance ......................................... 116
Section 8.04 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions ................................................... 118
Section 8.05 Repayment to the Company .................................................................... 118
Section 8.06 Reinstatement .......................................................................................... 119
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER ............................................... 119
Section 9.01 Without Consent of Holders ................................................................... 119
Section 9.02 With Consent of Holders ........................................................................ 120
Section 9.03 Record Dates for Consents...................................................................... 122
Section 9.04 Notation on or Exchange of Notes .......................................................... 122
Section 9.05 Trustee to Sign Amendments, etc. .......................................................... 122
ARTICLE 10 GUARANTEES ................................................................................................... 123
Section 10.01 Guarantee ................................................................................................ 123
Section 10.02 Limitation on Guarantor Liability ........................................................... 124
Section 10.03 Execution and Delivery........................................................................... 125
Section 10.04 Subrogation ............................................................................................. 125
Section 10.05 Benefits Acknowledged .......................................................................... 125
Section 10.06 Release of Note Guarantees .................................................................... 126
ARTICLE 11 SATISFACTION AND DISCHARGE ................................................................ 127
Section 11.01 Satisfaction and Discharge ...................................................................... 127
Section 11.02 Application of Trust Money .................................................................... 127
ARTICLE 12 MISCELLANEOUS ............................................................................................ 128
Section 12.01 Notices .................................................................................................... 128
Section 12.02 Communication by Holders with Other Holders .................................... 130
Section 12.03 Certificate and Opinion as to Conditions Precedent ............................... 130
Section 12.04 Statements Required in Certificate or Opinion ....................................... 130
Section 12.05 Rules by Trustee and Agents .................................................................. 131
Section 12.06 No Personal Liability of Directors, Officers, Employees, Members,
Partners and Shareholders ....................................................................... 131
Section 12.07 Governing Law ....................................................................................... 131
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Section 12.08 Waiver of Jury Trial ................................................................................ 131
Section 12.09 No Adverse Interpretation of Other Agreements .................................... 131
Section 12.10 Successors ............................................................................................... 132
Section 12.11 Severability ............................................................................................. 132
Section 12.12 Counterpart Originals.............................................................................. 132
Section 12.13 Table of Contents, Headings, etc. ........................................................... 132
Section 12.14 U.S.A. PATRIOT Act ............................................................................. 132
Section 12.15 Payments Due on Non-Business Days .................................................... 132
Section 12.16 Submission to Jurisdiction ...................................................................... 133
Section 12.17 Waiver of Immunity ................................................................................ 133
Section 12.18 Conversion of Currency. ......................................................................... 134
Section 12.19 Accounting Provisions. ........................................................................... 134
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
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INDENTURE, dated as of April 21, 2015, among Concordia Healthcare Corp., a
corporation incorporated under the laws of the Province of Ontario (the “Company”), the
Guarantors (as defined herein) party hereto and U.S. Bank National Association, a national
banking association, as Trustee.
W I T N E S S E T H
WHEREAS, the Company has duly authorized the creation of and issue of
$735,000,000 aggregate principal amount of 7.000% Senior Notes due 2023 (the “Initial
Notes”); and
WHEREAS, the Company and each of the Guarantors have duly authorized the
execution and delivery of this Indenture.
NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of the Holders.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A
attached hereto, bearing the Global Notes Legend, the Canadian Restricted Legend (if
applicable) and the Private Placement Legend and deposited with or on behalf of, and registered
in the name of, the Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
“Accounting Change” shall mean any change in accounting principles required by
the promulgation of any rule, regulation, pronouncement or opinion by the International
Accounting Standards Board as adopted by the Chartered Professional Accountants of Canada.
“Acquired Debt” means Debt (1) of a Person or any of its Subsidiaries existing at
the time such Person becomes a Restricted Subsidiary, pursuant to an Asset Acquisition or
otherwise, or (2) assumed in connection with an Asset Acquisition. Acquired Debt shall be
deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date
such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding
sentence, on the date of consummation of such Asset Acquisition.
“Additional Notes” means additional Notes (other than the Initial Notes) issued
from time to time under this Indenture in accordance with Section 2.01 and Section 4.09, as part
of the same series as the Initial Notes whether or not they bear the same “CUSIP” number.
“Affiliate” of any Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such Person. For the purposes
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of this definition, “control” when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings that correspond to the foregoing.
“Agent” means any Registrar or Paying Agent.
“Applicable Premium” means, with respect to a Note on any applicable
redemption date, the greater of:
(1) 1.0% of the then-outstanding principal amount of the Note; and
(2) the excess, if any, of:
(a) the present value at such redemption date of (i) the Redemption
Price of the Note at April 15, 2018 (such Redemption Price being set forth
Section 3.07) plus (ii) all required interest payments due on the Note through
April 15, 2018 (excluding accrued but unpaid interest, if any), computed using a
discount rate equal to the Treasury Rate as of such redemption date plus 50 basis
points; over
(b) the then-outstanding principal amount of the Note.
“Applicable Procedures” means, with respect to any transfer or transaction
involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary
for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
“Asset Acquisition” means:
(1) an Investment by the Company or any Restricted Subsidiary in any other
Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged
or amalgamated with or into the Company or any Restricted Subsidiary; or
(2) the acquisition by the Company or any Restricted Subsidiary (pursuant to
a merger, amalgamation, consolidation, arrangement or otherwise) of the assets of any Person
which constitute all or substantially all of the assets of such Person, any division or line of
business of such Person or any other properties or assets of such Person other than in the
ordinary course of business.
“Asset Sale” means any transfer, conveyance, sale, lease or other disposition
(including, without limitation, dispositions pursuant to any consolidation, merger, arrangement
or amalgamation) by the Company or any of its Restricted Subsidiaries to any Person (other than
to the Company or one or more of its Restricted Subsidiaries) in any single transaction or series
of transactions of:
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(1) Capital Interests in another Person (other than directors’ qualifying shares
or shares or interests required to be held by foreign nationals pursuant to local law); or
(2) any other property or assets (other than in the ordinary course of business,
including, as applicable, inventory sales);
provided, however, that the term “Asset Sale” shall exclude:
(a) any asset disposition permitted by Section 5.01 that constitutes a
disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole;
(b) any transfer, conveyance, sale, lease or other disposition of property or
assets, the gross proceeds of which (exclusive of indemnities) do not exceed, in any one or
related series of transactions, $10.0 million;
(c) sales or other dispositions of cash or Eligible Cash Equivalents;
(d) issuances, sales, pledges or other dispositions of Capital Interests, or Debt
or other securities of or in Unrestricted Subsidiaries;
(e) the sale and leaseback of any assets within 90 days of the acquisition
thereof;
(f) the disposition of assets that, in the good faith judgment of the Company,
are surplus, unnecessary, unsuitable, obsolete, damaged, worn out or no longer used or useful in
the business of such entity or are economically impracticable to maintain, or any disposition of
inventory or goods held for sale in the ordinary course of business;
(g) a Restricted Payment or Permitted Investment that is otherwise permitted
by this Indenture;
(h) any trade in of equipment in exchange for other equipment; provided that
in the good faith judgment of the Company, the Company or such Restricted Subsidiary receives
equipment having a Fair Market Value equal to or greater than the equipment being traded in;
(i) the concurrent purchase and sale or swap or exchange of Related Business
Assets or a combination of Related Business Assets between the Company or any of its
Restricted Subsidiaries and another Person to the extent that the Related Business Assets
received by the Company or its Restricted Subsidiaries have a Fair Market Value equal to or
greater than the Related Business Assets being transferred;
(j) the creation of a Lien (but not the sale or other disposition of the property
subject to such Lien);
(k) leases, subleases, assignments, licenses, cross-licenses and sublicenses of
assets in the ordinary course of business to third persons not interfering in any material respect
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with the business of the Company or any of its Restricted Subsidiaries and otherwise in
accordance with the provisions of this Indenture, including subleases and charters related to
corporate aircraft leases;
(l) any disposition by a Subsidiary to the Company or by the Company or a
Subsidiary to a Restricted Subsidiary;
(m) dispositions or forgiveness of accounts receivable in connection with the
collection or compromise thereof in the ordinary course of business;
(n) licensing or sublicensing of intellectual property or other general
intangibles in accordance with industry practice (including in connection with distribution
agreements) or in the ordinary course of business;
(o) any foreclosure on assets to the extent such foreclosure would not
otherwise result in a Default or Event of Default;
(p) dispositions of Investments in joint ventures to the extent required by, or
made pursuant to, contractual buy/sell arrangements between the joint venture parties set forth in
joint venture arrangements and similar binding arrangements;
(q) transfers of property subject to a Casualty Event;
(r) sales of non-core assets and real estate assets acquired in connection with
an Asset Acquisition permitted under this Indenture which, within 30 days of the date of the
acquisition, are designated as being held for sale and not for the continued operation of the
Company or any of the Restricted Subsidiaries or any of their respective businesses;
(s) any exchange of property pursuant to Section 1031 of the Code for use in
a Permitted Business (excluding boot thereon);
(t) the sale, transfer or other disposition of the assets relating to the injectibles
business purchased in the Transactions; provided that (i) such sale, transfer or disposition is
made pursuant to a binding agreement executed within 12 months of the Issue Date and (ii) such
sale, transfer or disposition is completed within 180 days after the date of such binding
agreement; or
(u) the unwinding of any Hedging Obligation or obligation under any Hedge
Agreement.
For purposes of this definition, any series of related transactions that, if effected
as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale
effected when the last such transaction which is a part thereof is effected.
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, as at
the time of determination, the present value (discounted at the rate of interest implicit in such
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transaction) of the total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale and Leaseback Transaction (including any period for which
such lease has been extended).
“Authorized Officer” means, as applied to any Person, any individual holding the
position of chairman of the board (if an officer), chief executive officer, president, vice president
(or the equivalent thereof), chief financial officer or treasurer of such Person or any other
individual designated (i) by the Board of Directors or member of such Person or (ii) in writing by
an existing Authorized Officer of such Person as an authorized signatory of any document or
certificate delivered hereunder.
“Average Life” means, as of any date of determination, with respect to any Debt,
the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the
date of determination to the dates of each successive scheduled principal payment (including any
sinking fund or mandatory redemption payment requirements) of such Debt multiplied by (y) the
amount of such principal payment by (ii) the sum of all such principal payments.
“Bankruptcy Law” means Title 11, U.S. Code, the Bankruptcy and Insolvency
Act (Canada), the Companies’ Creditors Arrangement Act (Canada), in each case, as amended,
or any similar federal, Canadian, provincial, state or foreign law for the relief of debtors.
“beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, and “beneficial owner” has a corresponding meaning.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of such corporation or
any duly authorized committee thereof;
(2) in the case of a limited liability company, the board of directors or
managers, manager or managing member of such person or duly authorized committee thereof;
(3) in the case of a partnership, the general partner of such person or duly
authorized committee thereof; and
(4) with respect to any other entity, the board of directors or similar body of
the general partner or managers of such entity or any duly authorized committee thereof.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banks or trust companies in the Borough of Manhattan, The City of
New York or Xxx Xxxx xx Xxxxxxx, Xxxxxxx, Xxxxxx are obligated or authorized by law or
executive order to close.
“Canadian Restricted Legend” means the legend set forth in Section 2.06(f)(iii).
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“Canadian Securities Laws” means all applicable securities laws of each of the
provinces of Canada and the respective regulations and rules under such laws, together with
applicable multilateral or national instruments, and published orders and rulings issued or
adopted by the securities regulatory authorities in such provinces.
“Capital Interests” in any Person means any and all shares, interests (including
Preferred Interests), participations or other equivalents in the equity (however designated) of
such Person and any rights (other than Debt securities convertible into an equity interest),
warrants or options to acquire an equity interest of such Person (in each case, other than
royalties).
“Capital Lease Obligations” means any obligation under a lease that is required to
be capitalized for financial reporting purposes in accordance with the provisions of IFRS in
effect as of the Issue Date; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with IFRS in effect as of the
Issue Date, whether or not such Obligation is in effect on the Issue Date; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee without payment of
a penalty.
“cash” means any of U.S. dollars, Canadian dollars, pounds sterling, euros, or in
the case of any foreign Subsidiary, such local currency held by it from time to time in the
ordinary course and not for speculation.
“Casualty Event” means any settlement of, or payment in respect of, (i) any
property or casualty insurance claim or (ii) any seizure, condemnation, confiscation or taking
under the power of eminent domain of, requisition of title to or use of, or any similar event in
respect of, or proceeding relating to, any asset of the Company or any Restricted Subsidiary.
“Change in Tax Law,” for the purposes of Section 3.09, means (i) any amendment
to, or change in, the laws (or any regulations or rulings promulgated thereunder) of a relevant
Taxing Jurisdiction which amendment or change is announced and becomes effective after the
Issue Date (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after
the Issue Date, after such later date); or (ii) any amendment to, or change in, an official written
interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment, or
order by a court of competent jurisdiction or a change in published administrative practice)
which amendment or change is announced and becomes effective after the Issue Date (or, if the
applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date, after
such later date).
“Change of Control” means:
(1) the Company becomes aware (by way of a report or any other filing
pursuant to Canadian Securities Laws or the Exchange Act, proxy, vote, written notice or
otherwise) that any “person” or “group” of related persons (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), is or becomes the
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“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on
the Issue Date), directly or indirectly, of more than 50% of the Voting Interests of the Company
(or its successor by way or merger, amalgamation, arrangement, consolidation or purchase of all
or substantially all of its assets); or
(2) the merger, amalgamation, consolidation or arrangement of the Company,
including by way of an exchange of securities or otherwise, with or into another Person or the
merger, amalgamation, consolidation or arrangement of another Person with or into the
Company, the merger, amalgamation, consolidation or arrangement of any Person, including by
way of an exchange of securities or otherwise, with or into a Subsidiary of the Company, unless
the holders of a majority of the aggregate voting power of the Voting Interests of the Company,
immediately prior to such transaction, directly or indirectly, hold securities of the surviving or
transferee Person that represent, immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Interests of the surviving or transferee Person; or
(3) the Company sells, directly or indirectly, assigns, conveys, transfers,
leases or otherwise disposes of (other than by way of merger, amalgamation, consolidation or
arrangement), either in one transaction or a series of related transactions, all or substantially all
of its assets to a Person other than a Restricted Subsidiary of the Company.
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor
securities clearing agency.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Commission” means the U.S. Securities and Exchange Commission or any
successor thereto.
“Common Interests” of any Person means Capital Interests in such Person that do
not rank prior, as to the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of such Person, to Capital
Interests of any other class in such Person.
“Company” means the party named as such in the first paragraph of this Indenture
or any Successor Entity.
“Consolidated Adjusted EBITDA” means the Consolidated Net Income of the
Company and its Restricted Subsidiaries determined on a consolidated basis for such period for
which internal financial information is available:
(a) increased, in each case to the extent deducted (and not added back) in
Consolidated Net Income, and in each case, without duplication with any other item described in
this clause (a) or any item excluded pursuant to the definition of Consolidated Net Income, by:
(i) provision for taxes based on income or profits or capital, including
state, provincial, franchise, excise and similar taxes and foreign withholding taxes
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of such person paid or accrued, including any penalties and interest relating to any
tax examinations; plus
(ii) Consolidated Interest Expense for such period; plus
(iii) depreciation and amortization expense of such Person for such
period; plus
(iv) extraordinary, non-recurring, unusual or exceptional losses,
charges and expenses; plus
(v) losses, charges and expenses relating to the Transactions regardless
of when paid (including, without limitation, the write-off of deferred financing
fees capitalized on the balance sheet corresponding to the Existing Debt, any
financial advisory fees, filing fees, accounting fees, legal fees and other similar
advisory and consulting fees and related out-of-pocket expenses and other fees,
discounts and commissions, including with regard to arranging or syndication);
plus
(vi) (A) actual expenses, costs and charges related to business
optimization, relocation or integration; (B) actual expenses, costs and charges
related to Asset Acquisitions after the Issue Date and (C) severance and other
restructuring charges actually incurred; plus
(vii) losses, charges and expenses relating to asset dispositions or the
sale or other disposition of any Capital Interests of any Person other than in the
ordinary course of business, as determined in good faith by an Authorized Officer
of the Company; plus
(viii) losses, charges and expenses attributable to disposed or
discontinued operations and losses, charges and expenses related to the disposal
of disposed, abandoned, closed or discontinued operations; plus
(ix) losses, charges and expenses attributable to the early
extinguishment or conversion of Debt, Hedge Agreements or other derivative
instruments (including deferred financing expenses written off and premiums
paid); plus
(x) charges, expenses and fees incurred, including financial advisory,
accounting, auditor, legal and other consulting and advisory fees and any
Canadian Securities Administrator, SEDAR or other filing fees and expenses, or
any amortization thereof, in connection with any equity offering, acquisition,
merger, amalgamation, investment, recapitalization, asset disposition, Incurrence
or repayment of Debt (including deferred financing expenses), refinancing
transaction or amendment or modification of any debt instrument (in each case,
including any such transaction consummated prior to the Issue Date and any
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transaction undertaken but not completed) and any non-recurring charges and
expenses (including non-recurring merger or amalgamation expenses) incurred as
a result of any such transaction; plus
(xi) the amount of cost savings and synergies projected by the
Company in good faith to be realized as a result of specified actions taken or
expected to be taken prior to or during such period (which cost savings or
synergies shall be subject only to certification by an Authorized Officer of the
Company and shall be calculated on a Pro Forma Basis as though such cost
savings or synergies had been realized on the first day of the relevant period), net
of the amount of actual benefits realized during such period from such actions;
provided that (A) such cost savings or synergies are reasonably identifiable and
factually supportable, (B) are expected to be realized (in the good faith
determination of the Company) within eighteen (18) months after the date of such
action and (C) the aggregate amount added back pursuant to this clause (xi) for
any four fiscal quarter period shall not exceed 20.0% of Consolidated Adjusted
EBITDA; plus
(xii) any other non-cash losses, charges and expenses, including any
write offs or write downs, reducing Consolidated Net Income for such period;
(b) decreased (in each case to the extent added in Consolidated Net Income)
by (without duplication):
(i) net unrealized gains on Hedge Agreements; plus
(ii) gains relating to asset dispositions or the sale or other disposition
of any Capital Interests of any person other than in the ordinary course of
business; plus
(iii) cash payments during such period on account of accruals on or
reserves added to Consolidated Adjusted EBITDA pursuant to clause (a) above;
plus
(iv) non-cash gains, excluding any non-cash gains that represent the
reversal of any accrual of, or cash reserve for, anticipated cash charges that were
deducted (and not added back) in the calculation of Consolidated Adjusted
EBITDA for any prior period.
“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person,
the ratio of the aggregate amount of Consolidated Adjusted EBITDA of such Person for the four
full fiscal quarters, treated as one period, for which internal financial information in respect
thereof is available immediately preceding the date of the transaction (the “Transaction Date”)
giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (such four full
fiscal quarter period being referred to herein as the “Four Quarter Period”) to the aggregate
amount of Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition
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to and without limitation of the foregoing, for purposes of this definition, “Consolidated
Adjusted EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect, on
a Pro Forma Basis for the period of such calculation, to any Asset Sales or other dispositions or
Asset Acquisitions, investments, mergers, amalgamations, consolidations and discontinued
operations (as determined in accordance with IFRS) and designations of any Restricted
Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted
Subsidiary occurring during the Four Quarter Period or any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or other
disposition or Asset Acquisition (including the Incurrence or assumption of any such Acquired
Debt), investment, merger, amalgamation, consolidation, disposed operation or designation
occurred on the first day of the Four Quarter Period. For purposes of this definition, Pro Forma
calculations shall be made in accordance with Article 11 of Regulation S-X promulgated under
the Securities Act or in accordance with Canadian Securities Laws.
If the Debt which is the subject of a determination of the Consolidated Fixed
Charge Coverage Ratio is Acquired Debt, or Debt Incurred in connection with the simultaneous
Asset Acquisition, or Debt of an Unrestricted Subsidiary being designated as a Restricted
Subsidiary, then such ratio shall be determined by giving effect (on a Pro Forma Basis, as if the
transaction had occurred at the beginning of the Four Quarter Period) to (x) the Incurrence of
such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and
(y) the inclusion, in Consolidated Adjusted EBITDA, of the Consolidated Adjusted EBITDA of
the acquired Person, business, property or assets or redesignated Subsidiary. For purposes of
calculating Debt which is the subject of a determination of the Consolidated Fixed Charge
Coverage Ratio, the U.S. dollar equivalent principal amount of Debt denominated in another
currency shall be calculated based on the relevant currency exchange rate in effect on the last day
of the most recently ended fiscal quarter for which internal financial information is available at
the time of calculation.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of
determining the denominator (but not the numerator) of this “Consolidated Fixed Charge
Coverage Ratio”:
(i) interest on outstanding Debt 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 Debt in effect (taking into
account any Hedging Obligations or Swap Contract applicable to such Debt) on the Transaction
Date; and
(ii) if interest on any Debt 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 (taking into
account any Hedging Obligations applicable to such Debt) on the Transaction Date will be
deemed to have been in effect during the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly or indirectly
Guarantees Debt of a third Person, the calculation referred to in this definition shall give effect to
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the Incurrence of such Guaranteed Debt as if such Person or such Subsidiary had directly
Incurred or otherwise assumed such Guaranteed Debt.
“Consolidated Fixed Charges” means, with respect to any Person for any period,
the sum of, without duplication, the amounts for such period of:
(1) Consolidated Interest Expense; and
(2) the product of (a) all dividends and other distributions paid or accrued
during such period in respect of Redeemable Capital Interests of such Person and its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Interests), times (b) 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 such Person, expressed as a decimal.
“Consolidated Interest Expense” means, with respect to any Person for any
period, without duplication, the sum of:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income, as determined on a consolidated basis in accordance with
IFRS, including, without limitation:
(a) any amortization of Debt discount;
(b) the net payments (less net payments received) under any Hedging
Obligation or Swap Contract in respect of interest rate protection (including any
amortization of discounts, but excluding xxxx to market movements in the
valuation of Hedging Obligations);
(c) the interest portion of any deferred payment obligation;
(d) all commissions, discounts and other fees and charges owed with
respect to letters of credit or bankers’ acceptances; and
(e) all accrued interest;
(2) the interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such
period determined on a consolidated basis in accordance with IFRS; and
(3) all capitalized interest of such Person and its Restricted Subsidiaries for
such period;
less interest income of such Person and its Restricted Subsidiaries for such period;
provided, however, that Consolidated Interest Expense will exclude (I) the amortization or write
off of debt issuance costs and deferred financing fees, commissions, fees and expenses and (II)
any expensing of interim loan commitment and other financing fees.
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“Consolidated Net Income” means the net income (or loss) of the Company and
its Restricted Subsidiaries determined on a consolidated basis for such period; provided that,
without duplication:
(1) the cumulative effect of a change in accounting principles shall be
excluded;
(2) the net after-tax effect of extraordinary, non-recurring, unusual or
exceptional gains, losses, charges and expenses, including any relating to or arising in connection
with claims or litigation (including legal fees, settlements, judgments and awards), shall be
excluded;
(3) the net after-tax effect of gains, losses, charges and expenses attributable
to asset dispositions or the sale or other disposition of any Capital Interests of any person other
than in the ordinary course of business, as determined in good faith by an Authorized Officer of
the Company, shall be excluded;
(4) the net after-tax effect of gains, losses, charges and expenses attributable
to disposed, discontinued, closed or abandoned operations and any net after-tax gains, losses,
charges and expenses related to the disposal of disposed, abandoned, closed or discontinued
operations shall be excluded;
(5) the net after-tax effect of gains, losses, charges and expenses attributable
to the early extinguishment or conversion of Debt, Hedge Agreements or other derivative
instruments (including deferred financing expenses written off and premiums paid) shall be
excluded;
(6) the net income for such period of any person that is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded;
provided that Consolidated Net Income shall be increased by the amount of dividends or
distributions or other payments that are actually paid to the Company or any Restricted
Subsidiary thereof in such period in cash;
(7) the effects of adjustments (including the effects of such adjustments
pushed down to the Company and its Restricted Subsidiaries) in any line item in such person’s
consolidated financial statements pursuant to IFRS resulting from the application of
recapitalization accounting or purchase accounting, as the case may be, in connection with the
Transactions, any acquisition or any joint venture investments or the amortization or write off of
any amounts thereof, net of taxes, shall be excluded;
(8) impairment and amortization charges, asset write offs and write downs,
including impairment and amortization charges, asset write offs and write downs related to
goodwill, intangible assets, long lived assets, investments in debt and equity securities or as a
result of a change in law or regulation, in each case, pursuant to IFRS shall be excluded;
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(9) non-cash compensation charges and expenses, including any such charges
and expenses arising from grants of stock appreciation or similar rights, phantom equity, stock
options, restricted stock, deferred stock or other rights or equity incentive programs and non-cash
deemed finance charges in respect of any pension liabilities or other provisions shall be
excluded;
(10) (i) charges and expenses pursuant to any management equity plan, long-
term incentive plan or stock option plan or any other management or employee benefit plan or
agreement, any stock subscription or shareholder agreement and (ii) charges, expenses, accruals
and reserves in connection with the rollover, acceleration or payout of Capital Interests held by
management of the Company or any of the Restricted Subsidiaries or Parent Entities, in the case
of each of (i) and (ii) above, to the extent that (in the case of any cash charges and expenses)
such charges, expenses, accruals and reserves are funded with cash proceeds contributed to the
capital of the Company or any Parent Entity or net cash proceeds of an issuance of Capital
Interests (other than Redeemable Capital Interests) of the Company or any direct or indirect
parent of the Company shall be excluded;
(11) any non-cash loss, charge or expense relating to the incurrence of
obligations in respect of an “earn out” or other similar contingent obligations shall be excluded,
but only for so long as such loss, charge or expense remains a non-cash contingent obligation;
(12) to the extent covered by insurance (including business interruption
insurance) and actually reimbursed, or, so long as the Company has made a determination that
there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and
only to the extent that (i) such coverage is not denied by the applicable carrier or indemnifying
party in writing within 270 days and (ii) such amount is in fact reimbursed within 365 days of the
date of such determination (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within 365 days), losses, charges, expenses, accruals
and reserves with respect to liability or casualty events or business interruption shall be
excluded;
(13) (i) non-cash or unrealized gains or losses in respect of obligations under
Hedge Agreements or any ineffectiveness recognized in earnings related to qualifying hedge
transactions or the fair value of changes therein recognized in earnings for derivatives that do not
qualify as hedge transactions, in each case, in respect of obligations under Hedge Agreements,
and (ii) gains or losses resulting from currency translation gains or losses related to currency re-
measurements of Debt (including gains or losses resulting from (x) Hedge Agreements for
currency exchange risk and (y) intercompany Debt) and all other foreign currency translation
gains or losses to the extent such gains or losses are non-cash items shall be excluded;
(14) non-cash interest charges on defined benefit, defined contribution or other
pension plans shall be excluded; and
(15) any expenses or charges to the extent paid by a third party that is not a
Restricted Subsidiary on behalf of the Company or a Restricted Subsidiary (and not required to
be reimbursed), and any gain resulting from such payment, shall be excluded.
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“Consolidated Total Assets” means, as of any date of determination and on a Pro
Forma Basis for any acquisition or disposition or other Specified Transaction that has been
consummated on or prior to the date of determination, the total amount of all assets of the
Company and its Restricted Subsidiaries, determined on a consolidated basis in accordance with
IFRS as of the most recent date for which internal financial information is available.
“Credit Agreement” means the Credit and Guaranty Agreement dated on or about
the Issue Date between the Company (as borrower), certain Subsidiaries of the Company (as
guarantors), certain lenders thereto from time to time, RBC Capital Markets, Xxxxxx Xxxxxxx
Senior Funding, Inc., GE Capital Markets, Inc. and TD Securities (USA) LLC (as joint lead
arrangers and joint bookrunners) and Royal Bank of Canada (as administrative agent and
collateral agent), as amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), restructured, repaid, refunded,
refinanced or otherwise modified from time to time, including any agreement or indenture
extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any
portion of the Debt under such agreements or any successor or replacement agreement or
agreements or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“Credit Facilities” means (i) the Credit Agreement, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether with the original
lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time
to time, including any agreement or indenture extending the maturity thereof, refinancing,
replacing or otherwise restructuring all or any portion of the Debt under such agreements or any
successor or replacement agreement or agreements or increasing the amount loaned or issued
thereunder or altering the maturity thereof, and (ii) whether or not the agreements referred to in
clause (i) remain outstanding, one or more debt facilities, commercial paper facilities or Debt
Issuances with banks, investment banks, insurance companies, mutual funds, other institutional
lenders, institutional investors or any of the foregoing providing for revolving credit loans, term
loans, notes, bonds, indentures, debentures, receivables financing (including through the sale of
receivables to such lenders, other financiers or to special purpose entities formed to borrow from
(or sell such receivables to) such lenders or other financiers against such receivables), letters of
credit, bankers’ acceptances, other borrowings or Debt Issuances, in each case, as amended,
restated, modified, renewed, extended, refunded, replaced or refinanced (in each case, without
limitation as to amount), in whole or in part, from time to time (including through one or more
Debt Issuances) and any agreements and related documents governing Debt or Obligations
Incurred to refinance amounts then outstanding or permitted to be outstanding, whether or not
with the original administrative agent, lenders, investment banks, insurance companies, mutual
funds, other institutional lenders, institutional investors or any of the foregoing and whether
provided under the original agreement, indenture or other documentation relating thereto.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.01 or such other address as to which the Trustee may give notice to the
Holders and the Company.
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“Custodian” means the Trustee, as custodian with respect to the Notes in global
form, or any successor entity thereto.
“DBRS” means DBRS Limited, DBRS, Inc. or DBRS Ratings Limited, and any
successors to their rating agency businesses.
“Debt” means at any time (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, or non-recourse, the
following:
(i) all indebtedness of such Person for money borrowed or for the deferred
purchase price of property, excluding any trade payables or other current liabilities Incurred in
the ordinary course of business;
(ii) all obligations of such Person evidenced by bonds, debentures, notes, or
other similar instruments;
(iii) all reimbursement obligations of such Person with respect to letters of
credit, bankers’ acceptances or similar facilities (excluding obligations in respect of letters of
credit or bankers’ acceptances issued in respect of trade payables) issued for the account of such
Person; provided that such obligations shall not constitute Debt except to the extent drawn and
not repaid within five Business Days;
(iv) all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property or assets acquired by such Person;
(v) all Capital Lease Obligations of such Person;
(vi) the maximum fixed redemption or repurchase price of Redeemable Capital
Interests in such Person at the time of determination;
(vii) the liquidation amount or liquidation preference of any Preferred Interests
issued by a Restricted Subsidiary that is not a Subsidiary Guarantor;
(viii) any Swap Contracts and Hedging Obligations of such Person at the time of
determination (the amount of any such obligations to be equal at any time to the net payments
under such agreements or arrangements giving rise to such obligations that would be payable by
such Person at the termination of such agreements or arrangements);
(ix) Attributable Debt with respect to any Sale and Leaseback Transaction to
which such Person is a party; and
(x) all obligations of the types referred to in clauses (i) through (ix) of this
definition of another Person, the payment of which, in either case, (A) such Person has
Guaranteed or (B) is secured by (or the holder of such Debt or the recipient of such dividends or
other distributions has an existing right, whether contingent or otherwise, to be secured by) any
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Lien upon the property or other assets of such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
For purposes of the foregoing definition of “Debt”:
(a) the maximum fixed repurchase price of any Redeemable Capital Interests
that do not have a fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Interests as if such Redeemable Capital Interests were repurchased on any
date on which Debt shall be required to be determined pursuant to this Indenture; provided,
however, that, if such Redeemable Capital Interests are not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable Capital Interests;
(b) the amount outstanding at any time of any Debt issued with original issue
discount is the principal amount of such Debt less the remaining unamortized portion of the
original issue discount of such Debt at such time as determined in conformity with IFRS, but
such Debt shall be deemed Incurred only as of the date of original issuance thereof;
(c) the amount of any Debt described in clause (viii) of the definition of
“Debt” hereunder is the net amount payable (after giving effect to permitted set off) if such Swap
Contracts or Hedging Obligations are terminated at that time due to default of such Person;
(d) the amount of any Debt described in clause (x)(A) of the definition of
“Debt” hereunder shall be the maximum liability under any such Guarantee;
(e) the amount of any Debt described in clause (x)(B) of the definition of
“Debt” hereunder shall be the lesser of (I) the maximum amount of the obligations so secured
and (II) the Fair Market Value of such property or other assets; and
(f) interest, fees, premium, and expenses and additional payments, if any, will
not constitute Debt.
The amount of Debt of any Person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above and the maximum liability, only
upon the occurrence of the contingency giving rise to the obligations, of any contingent
obligations at such date; provided, however, that in the case of Debt issued or sold at a discount,
the amount of such Debt at any time will be the accreted value thereof at such time.
“Debt Issuances” means, with respect to the Company or any Subsidiary
Guarantor, one or more issuances after the Issue Date of Debt evidenced by notes, debentures,
bonds or other similar securities or instruments.
“Default” means any event that is, or after notice or passage of time or both would
be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A
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hereto except that such Note shall not bear the Global Notes Legend and shall not have the
“Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in
part in global form, the Person specified in Section 2.03 as the Depositary with respect to the
Notes and any and all successors thereto appointed as Depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash
consideration received by the Company or a Restricted Subsidiary in connection with an Asset
Sale that is so 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 Eligible Cash
Equivalents received in connection with a subsequent payment, redemption, retirement, sale or
other disposition of 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 extent it
has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with
Section 4.10.
“DTC” means The Depository Trust Company.
“Eligible Cash Equivalents” means, as at any date of determination, any of the
following:
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States or the Canadian Governments or (b) issued by
any agency of the United States or Canada, in each case, the obligations of which are backed by
the full faith and credit of the United States or Canada, as applicable, and in each case, maturing
within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of
America or province or territory of Canada or any political subdivision of any such state,
province or territory or any public instrumentality thereof, in each case, maturing within one year
after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from
S&P or at least P-2 from Xxxxx’x or at least R-1(low) by DBRS;
(iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from
S&P or at least P-2 from Xxxxx’x or at least R-1(low) from DBRS;
(iv) certificates of deposit, U.S. or Canadian dollar-denominated time deposits,
overnight bank deposits or bankers’ acceptances (or, in the case of Subsidiaries organized
outside of the United States, the foreign equivalent) maturing within one year after such date and
issued or accepted by any commercial bank organized under (x) the laws of the United States of
America or any state thereof or the District of Columbia that (a) is at least “adequately
capitalized” (as defined in the regulations of its primary federal banking regulator) and (b) has
Tier 1 capital (as defined in such regulations) of not less than $250,000,000 or (y) the laws of
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Canada, or in the case of Subsidiaries organized outside of the United States, any local office of
any commercial bank organized under the laws of the relevant jurisdiction or any political
subdivision thereof, in either case, which has combined capital and surplus and undivided profits
in excess of the U.S. dollar equivalent of $250,000,000;
(v) repurchase obligations for underlying securities of the types described in
clauses (i) through (iv) above; and
(vi) shares of any money market mutual fund that (a) has substantially all of its
assets invested continuously in the types of investments referred to in clauses (i) and (ii) above,
(b) has net assets of not less than $250,000,000 (or foreign currency equivalent), and (c) has one
of the two highest ratings obtainable from either S&P or Xxxxx’x or at least R-1(low) by DBRS,
provided, that, in the case of any Investment by the Company or any Subsidiary of
the Company organized outside of the United States, “Eligible Cash Equivalents” shall also
include:
(x) direct obligations of the sovereign nation (or any agency thereof) in which
the Company or such Subsidiary is organized and is conducting business or in obligations fully
and unconditionally guaranteed by such sovereign nation (or any agency thereof), in each case,
maturing within a year after such date and having, at the time of the acquisition thereof, a rating
equivalent to at least A-2 from S&P and at least P-2 from Xxxxx’x;
(y) investments of the type and maturity described in clauses (i) through (vi)
above of foreign obligors, which Investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable foreign rating agencies;
and
(z) shares of any money market mutual or similar fund that has substantially
all its assets invested continuously in the types of investments otherwise satisfying the
requirements of this definition (including this proviso).
“Euroclear” means Euroclear Bank S.A./N.V., as operator of Euroclear systems
Clearance System or any successor securities clearing agency.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Debt” means all outstanding Debt under the Amended and Restated
Credit Agreement, dated as of September 30, 2014, between, among others, the Company (as
borrower), GE Capital Canada Finance, Inc. (as a lender and agent) and a syndicate of other
lenders party thereto.
“Expiration Date” has the meaning set forth in the definition of “Offer to
Purchase” hereunder.
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“Fair Market Value” means, with respect to any asset or property, the price of
which could be negotiated in an arm’s length transaction, for cash, between a willing seller and a
willing buyer, as determined in good faith by the Company.
“Four Quarter Period” has the meaning set forth in the definition of “Consolidated
Fixed Charge Coverage Ratio” hereunder.
“Global Notes Legend” means the legend set forth in Section 2.06(f)(ii), which is
required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto,
issued in accordance with Sections 2.01, 2.06(b), or 2.06(d).
“Guarantee” means, as applied to any Debt of another Person (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner, of any part or all of such Debt, (ii) any direct or
indirect obligation, contingent or otherwise, of a Person guaranteeing or having the effect of
guaranteeing the Debt of any other Person in any manner, and (iii) an agreement of a Person,
direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way
the payment (or payment of damages in the event of non-payment) of all or any part of such Debt
of another Person (and “Guaranteed” and “Guaranteeing” shall have meanings that correspond to
the foregoing).
“Guarantor” means each Restricted Subsidiary of the Company in existence on
the Issue Date that provides a Note Guarantee on the Issue Date and any other Restricted
Subsidiary of the Company that provides a Note Guarantee after the Issue Date in accordance
with this Indenture; provided that upon release or discharge of any Restricted Subsidiary of the
Company from its Note Guarantee in accordance with this Indenture, such Restricted Subsidiary
shall cease to be a Guarantor.
“Hedge Agreement” means any agreement with respect to any swap, forward,
spot, future or derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions, in each case, not
entered into for speculative purposes. For the avoidance of doubt, Hedging Agreements shall not
be deemed speculative or entered into for speculative purposes if any Hedging Agreement is
intended in good faith, at inception of execution, (A) to hedge or manage the interest rate
exposure associated with any Debt securities or Debt facilities of the Company or its Restricted
Subsidiaries, (B) for foreign exchange or currency exchange management or (C) to hedge any
exposure that the Company or its Restricted Subsidiaries may have to counterparties under other
Hedging Agreements such that the combination of such Hedging Agreements is not speculative
taken as a whole.
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“Hedging Obligations” of any Person means the obligations of such Person
pursuant to any Hedge Agreement entered into in the ordinary course of the Company’s
business.
“Holder” means a Person in whose name a Note is registered on the Registrar’s
books.
“IFRS” means the International Financial Reporting Standards promulgated by
the International Accounting Standards Board (or any successor board or agency), as adopted by
the Chartered Professional Accountants of Canada and in effect from time to time.
“Immediate Family Members” means with respect to any individual, such
individual’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law
(including adoptive relationships), and any trust, partnership or other bona fide estate-planning
vehicle the only beneficiaries of which are any of the foregoing individuals or any private
foundation or fund that is controlled by any of the foregoing individuals or any donor-advised
fund of which any such individual is the donor.
“Incur” means, with respect to any Debt or other obligation of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise
become liable in respect of, such Debt or other obligation or the recording, as required pursuant
to IFRS or otherwise, of any such Debt or other obligation on the balance sheet of such Person;
provided, however, that a change in IFRS or an interpretation thereunder that results in an
obligation of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt. Debt otherwise Incurred by a Person before it becomes a Subsidiary of
the Company shall be deemed to be Incurred at the time at which such Person becomes a
Subsidiary of the Company. “Incurrence,” “Incurred,” “Incurrable” and “Incurring” shall have
meanings that correspond to the foregoing. A Guarantee by the Company or a Restricted
Subsidiary of Debt Incurred by the Company or a Restricted Subsidiary, as applicable, shall not
be a separate Incurrence of Debt. In addition, the following shall not be deemed a separate
Incurrence of Debt:
(1) amortization of Debt discount or accretion of principal with respect to a
non-interest bearing or other discount security;
(2) the payment of regularly scheduled interest in the form of additional Debt
of the same instrument or the payment of regularly scheduled dividends on Capital Interests in
the form of additional Capital Interests of the same class and with the same terms;
(3) the obligation to pay a premium in respect of Debt arising in connection
with the issuance of a notice of redemption or making of a mandatory offer to purchase such
Debt; and
(4) unrealized losses or charges in respect of Hedging Obligations and Swap
Contracts, in each case, not entered into for speculative purposes.
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“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global
Note through a Participant.
“Initial Notes” has the meaning set forth in the recitals hereto.
“Initial Purchasers” means RBC Capital Markets, LLC, Xxxxxx Xxxxxxx & Co.
LLC, and TD Securities (USA) LLC.
“Interest Payment Date” means April 15 and October 15 of each year to stated
maturity of the Notes.
“Investment” by any Person means any direct or indirect loan, advance (or other
extension of credit) or capital contribution to (by means of any transfer of cash or other property
or assets to another Person or any other payments for property or services for the account or use
of another Person) another Person, including, without limitation, the following:
(i) the purchase or acquisition of any Capital Interest or other evidence of
beneficial ownership in another Person;
(ii) the purchase, acquisition or Guarantee of the Debt of another Person; and
(iii) the purchase or acquisition of the business or assets of another Person
substantially as an entirety,
but shall exclude:
(a) accounts receivable and other extensions of trade credit in accordance with
the Company’s customary practices;
(b) the acquisition of property and assets from suppliers and other vendors in
the ordinary course of business; and
(c) prepaid expenses and workers’ compensation, utility, lease (including
related to aircraft) and similar deposits, in the ordinary course of business.
“Investment Grade Rating” designates a rating of BBB or higher by S&P or Baa3
or higher by Moody’s or the equivalent of such ratings by S&P or Moody’s. In the event that the
Company shall select any other Rating Agency as provided under the definition of the term
“Rating Agencies,” the equivalent of such ratings by such Rating Agency shall be used.
“Issue Date” means April 21, 2015.
“Lien” means, with respect to any property or other asset, any mortgage, deed of
trust, deed to secure debt, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien (statutory or otherwise), charge, easement, encumbrance, preference, priority or
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other security agreement or preferential arrangement of any kind or nature whatsoever on or with
respect to such property or other asset (including, without limitation, any conditional sale or
other title retention agreement having substantially the same economic effect as any of the
foregoing); provided that in no event shall an operating lease be deemed to constitute a Lien.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its rating
agency business.
“Net Cash Proceeds” means, with respect to Asset Sales of any Person, cash and
Eligible Cash Equivalents received, net of:
(i) all reasonable out of pocket costs and expenses of such Person incurred in
connection with such a sale, including, without limitation, all legal, accounting, title and
recording tax expenses, commissions and other fees and expenses incurred and all federal, state,
foreign and local taxes arising in connection with such an Asset Sale that are paid or required to
be accrued as a liability under IFRS by such Person;
(ii) all payments made by such Person on any Debt that is secured by such
properties or other assets in accordance with the terms of any Lien upon or with respect to such
properties or other assets or that must, by the terms of such Lien or such Debt or in order to
obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person
(other than the Company or a Restricted Subsidiary thereof) in connection with such Asset Sale;
and
(iii) all contractually required distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction;
provided, however, that:
(a) in the event that any consideration for an Asset Sale (which would
otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending
determination of whether a purchase price adjustment will be made or (II) IFRS to be reserved
against other liabilities in connection with such Asset Sale, such consideration (or any portion
thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from
escrow or otherwise; and
(b) any non-cash consideration received in connection with any transaction,
which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it
is so converted.
“Non-Guarantor Restricted Subsidiary” means any Restricted Subsidiary that does
not Guarantee the Notes.
“Non-Guarantor Subsidiary” means any Subsidiary of the Company that does not
Guarantee the Notes.
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“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the Guarantee of the Obligations of the Company given
by each Guarantor of the Notes in accordance with Article 10 hereof.
“Notes” means the Initial Notes and any note authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term “Notes” shall also include any
Additional Notes that may be issued under a supplemental indenture and notes to be issued or
authenticated upon transfer, replacement or exchange of Notes.
“Obligations” means, with respect to any Debt, any principal, premium, interest
(including any interest accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign
law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations
with respect to letters of credit and banker’s acceptances), damages and other liabilities, and
Guarantees of payment of such principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities, payable under the documentation governing such
Debt.
“Offer” has the meaning set forth in the definition of “Offer to Purchase”
hereunder.
“Offer to Purchase” means a written offer (the “Offer”) sent by the Company
electronically or by first class mail, postage prepaid, to each Holder at his address appearing in
the security register on the date of the Offer, offering to purchase up to the aggregate principal
amount of Notes set forth in such Offer at the purchase price set forth in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable law, the offer
shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be,
subject to any contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of mailing of such Offer and a settlement date (the “Purchase Date”) for
purchase of Notes within five Business Days after the Expiration Date. The Company shall
notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer of the Company’s obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Company or, at the Company’s request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also
state:
(1) the Section of this Indenture pursuant to which the Offer to Purchase is
being made;
(2) the expiration date of the Offer to Purchase (the “Expiration Date”) and
the settlement date (the “Purchase Date”);
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(3) the aggregate principal amount of the outstanding Notes offered to be
purchased pursuant to the Offer to Purchase (including, if less than 100%, the manner by which
such amount has been determined pursuant to the covenants in this Indenture requiring the Offer
to Purchase) (the “Purchase Amount”);
(4) the purchase price to be paid by the Company for each Note accepted for
payment (as specified pursuant to the Indenture) (the “Purchase Price”);
(5) that the Holder may tender all or any portion of the Notes registered in the
name of such Holder and that any portion of a Note tendered must be tendered in a minimum
amount of $2,000 principal amount (and integral multiples of $1,000 in excess thereof);
(6) the place or places where Notes are to be surrendered for tender pursuant
to the Offer to Purchase, if applicable;
(7) that, unless the Company defaults in making such purchase, any Note
accepted for purchase pursuant to the Offer to Purchase will cease to accrue interest on and after
the Purchase Date, but that any Note not tendered or tendered but not purchased by the Company
pursuant to the Offer to Purchase will continue to accrue interest at the same rate;
(8) that, on the Purchase Date, the Purchase Price will become due and
payable upon each Note accepted for payment pursuant to the Offer to Purchase;
(9) that each Holder electing to tender a Note pursuant to the Offer to
Purchase will be required to surrender such Note or cause such Note to be surrendered at the
place or places set forth in the Offer prior to the close of business on the Expiration Date (such
Note being, if the Company or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of Notes
tendered if the Company (or its paying agent) receives, not later than the close of business on the
Expiration Date, a facsimile transmission or letter setting forth the name of the Holder, the
aggregate principal amount of the Notes the Holder tendered, the certificate number of the Note
the Holder tendered and a statement that such Holder is withdrawing all or a portion of his
tender;
(11) that if less than all of such holder’s Notes are tendered for purchase, such
Holder will be issued new Notes, such new Notes will be equal in principal amount to the
unpurchased portion of the Notes surrendered and the unpurchased portion of the Notes must be
equal to $2,000 or an integral multiple of $1,000 in excess of $2,000; and
(12) if applicable, that, in the case of any Holder whose Note is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Note without service charge, a new Note or Notes, of any authorized denomination as
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requested by such Holder, in the aggregate principal amount equal to and in exchange for the
unpurchased portion of the aggregate principal amount of the Notes so tendered.
“Offering Memorandum” means the offering memorandum, dated April 13, 2015,
relating to the offer and sale of the Initial Notes.
“Officer’s Certificate” means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer, the vice-president of
finance or the controller of the Company or such Guarantor, as applicable.
“Opinion of Counsel” means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
“Parent Entity” means any direct or indirect parent of the Company.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and,
with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Business” means any business similar in nature to any business
conducted by the Company and the Restricted Subsidiaries on the Issue Date and any business
reasonably ancillary, incidental, complementary or related to, or a reasonable extension,
development or expansion of, the business conducted by the Company and the Restricted
Subsidiaries on the Issue Date, in each case, as determined in good faith by the Company.
“Permitted Debt” means:
(1) Debt Incurred pursuant to any Credit Facilities in an aggregate principal
amount at any one time outstanding not to exceed $950 million;
(2) Debt under the Notes issued on the Issue Date and contribution,
indemnification and reimbursement obligations owed by the Company or any Guarantor to any
of the other of them in respect of amounts paid or payable on such Notes;
(3) Guarantees of the Notes;
(4) Debt of the Company or any Restricted Subsidiary outstanding on the
Issue Date (other than Debt described in clause (1), (2) or (3) of this definition);
(5) intercompany Debt between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries; provided that, if for any reason such Debt ceases to be held by
the Company or a Restricted Subsidiary, as applicable, such Debt shall cease to be Permitted
Debt under this clause (5) and shall be deemed Incurred as Debt of the Company or a Restricted
Subsidiary, as applicable, for purposes of this Indenture;
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(6) Guarantees Incurred by the Company of Debt of a Restricted Subsidiary
otherwise permitted to be Incurred under this Indenture; provided that such Guarantees are
subordinated to the Notes to the same extent as the Debt being Guaranteed if such Debt is a
Subordinated Obligation;
(7) Guarantees by any Restricted Subsidiary of Debt of the Company or any
Restricted Subsidiary, including Guarantees by any Restricted Subsidiary of Debt under the
Credit Facilities otherwise permitted to be Incurred under this Indenture; provided that such
Guarantees are subordinated to the Notes to the same extent as the Debt being Guaranteed if such
Debt is a Subordinated Obligation;
(8) Debt (including in respect of letters of credit, bank guarantees or similar
instruments) Incurred by the Company or any Restricted Subsidiary in respect of workers’
compensation claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Debt with respect to reimbursement type obligations
regarding workers’ compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance, and, for the avoidance of doubt,
including indemnity, bid, performance, warranty, release, appeal, surety and similar bonds,
letters of credit for operating purposes and completion Guarantees provided or Incurred
(including Guarantees thereof) by the Company or a Restricted Subsidiary in the ordinary course
of business; provided that, upon the Incurrence of Debt with respect to reimbursement
obligations regarding workers’ compensation claims, such obligations are reimbursed not later
than sixty (60) days following such Incurrence;
(9) Debt under Swap Contracts and Hedging Obligations, in each case, not
entered into for speculative purposes;
(10) Debt of the Company or any Restricted Subsidiary pursuant to Capital
Lease Obligations and Purchase Money Debt (including, for the avoidance of doubt, any security
deposits in respect of corporate aircraft) Incurred to finance the acquisition, installations, repairs,
improvement and removal of fixed or capital assets and any Refinancing Debt that Refinances
any Debt Incurred pursuant to this clause (10), including any additional Debt Incurred to pay
premiums, fees and expense in connection therewith; provided that the aggregate principal
amount of such Debt outstanding at any time may not exceed the greater of (i) $25 million and
(ii) 1.25% of Consolidated Total Assets; provided, further, that Capital Lease Obligations
Incurred by the Company or any Restricted Subsidiary pursuant to this clause (10) in connection
with a Sale and Lease Back Transaction shall not be subject to the foregoing limitation so long as
the proceeds of such Sale and Lease Back Transaction are used by the Company or such
Restricted Subsidiary to permanently repay outstanding Debt of the Company and its Restricted
Subsidiaries;
(11) Debt arising from agreements of the Company or a Restricted Subsidiary
providing for indemnification, contribution, earnout, adjustment of purchase price or similar
obligations, in each case, Incurred or assumed in connection with the acquisition or disposition
of any business or assets or any Capital Interests of a Restricted Subsidiary otherwise permitted
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under this Indenture, other than Guarantees of Debt for borrowed money Incurred for the
purpose of financing such acquisition of such business, assets or Capital Interests;
(12) Debt arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds or other cash management
treasury services in the ordinary course of business; provided, however, that such Debt is
extinguished within five Business Days of Incurrence;
(13) Debt consisting of (x) the financing of insurance premiums or (y) take-or-
pay obligations contained in supply arrangements, in each case, in the ordinary course of
business;
(14) Debt of the Company and the Restricted Subsidiaries Incurred under
overdraft facilities (including, but not limited to, intraday and purchasing card services) extended
by one or more financial institutions and established for the Company’s and the Restricted
Subsidiaries’ ordinary course of operations;
(15) Debt in respect of letters of credit, bank guarantees, warehouse receipts or
similar instruments issued to support performance obligations and letters of credit (other than
obligations in respect of other Debt) in the ordinary course of business;
(16) unsecured Debt in respect of obligations to pay the deferred purchase price
of goods or services or progress payments in connection with such goods and services incurred
in the ordinary course of business;
(17) Debt representing deferred compensation to employees, directors or
consultants incurred in the ordinary course of business;
(18) Debt consisting of promissory notes issued to current or former officers,
directors and employees, or their respective estates or family members, in each case, to finance
the purchase or redemption of Capital Interests of the Company or any Parent Entity permitted
under this Indenture;
(19) Guarantees of any lease permitted under this Indenture of real property
entered into by the Company or any Restricted Subsidiary;
(20) Debt in an aggregate amount equal to 100% of (i) the net cash proceeds
received by the Company from the issuance or sale of its Capital Interests (other than
Redeemable Capital Interests) after the Issue Date or by any Parent Entity from the issuance and
sale of its Capital Interests (other than Redeemable Capital Interests) and contributed to the
Company, in each case, after the Issue Date and (ii) any cash consisting of a capital contribution
received by any Parent Entity from the holders of its Capital Interests and contributed to the
Company, in each case, excluding any Capital Interests issued or capital contribution made on or
prior to the Issue Date; provided, however, (i) any such net cash proceeds that are so received or
contributed shall be excluded for purposes of making Restricted Payments under Section 4.07(a)
to the extent the Company and its Restricted Subsidiaries Incur Debt in reliance thereon and
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(ii) any net cash proceeds that are so received or contributed shall be excluded for purposes of
Incurring Debt pursuant to this clause to the extent the Company or any of its Restricted
Subsidiaries makes a Restricted Payment under Section 4.07(a) in reliance thereon;
(21) Debt (i) of the Company or any of its Restricted Subsidiaries Incurred or
issued to finance an acquisition and (ii) of Persons that are acquired by the Company or any of its
Restricted Subsidiaries or merged, amalgamated or consolidated into the Company or a
Restricted Subsidiary in accordance with the terms of this Indenture; provided, however, that
after giving effect to such acquisition and the incurrence of such Debt, either:
(A) the Company could Incur at least $1.00 of additional Debt pursuant
to Section 4.09(a); or
(B) the Consolidated Fixed Charge Coverage Ratio of the Company
and its Restricted Subsidiaries determined on a Pro Forma Basis would be equal
to or greater than immediately prior to such acquisition, merger, amalgamation,
arrangement or consolidation;
(22) Debt of the Company or any Restricted Subsidiary not otherwise permitted
pursuant to this definition, in an aggregate principal amount not to exceed the greater of (x) $50
million and (y) 3.0% of Consolidated Total Assets at any time outstanding;
(23) Refinancing Debt in respect of Debt Incurred pursuant to Section 4.09(a)
or pursuant to clauses (2), (3), (4), (20), (21) or (22) or this clause (23) of this definition; and
(24) Debt which (A) is contemplated by clause (x)(B) of the definition of
“Debt” hereunder and (B) could be secured with a Lien pursuant to clause (17) of the definition
of “Permitted Liens” hereunder.
“Permitted Investments” means:
(1) Investments in existence on the Issue Date;
(2) Investments required pursuant to any agreement or obligation of the
Company or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;
(3) Investments in cash and Eligible Cash Equivalents;
(4) Investments in property and other assets, owned or used by the Company
or any Restricted Subsidiary in the ordinary course of business;
(5) Investments by the Company or any of its Restricted Subsidiaries in the
Company or any Restricted Subsidiary;
(6) Investments by the Company or any Restricted Subsidiary in a Person, if
as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such
Person is merged, amalgamated, consolidated or amalgamated with or into, or transfers or
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conveys substantially all of its assets to, or is liquidated or wound up into, the Company or a
Restricted Subsidiary;
(7) Swap Contracts and Hedging Obligations, in each case, not entered into
for speculative purposes;
(8) receivables owing to the Company or any of its Subsidiaries and advances
to suppliers, in each case if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(9) Investments received in settlement of obligations owed to the Company or
any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the
foreclosure or enforcement of any Lien in favor of the Company or any Restricted Subsidiary;
(10) Investments by the Company or any Restricted Subsidiary not otherwise
permitted under this definition, in an aggregate amount not to exceed the greater of (x) $50
million and (y) 3.0% of Consolidated Total Assets at any one time outstanding;
(11) loans and advances to employees in an amount not to exceed $5 million in
the aggregate at any one time outstanding;
(12) Investments the payment for which consists solely of Capital Interests
(excluding Redeemable Capital Interests) of the Company;
(13) any Investment in any Person to the extent such Investment represents the
non-cash portion of the consideration received in connection with an Asset Sale consummated in
compliance with Section 4.10 or any other disposition of Property not constituting an Asset Sale;
(14) guarantees of operating leases or of other obligations that do not constitute
Debt, in each case, entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business;
(15) payroll, travel, moving, relocation and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business;
(16) Guarantees by the Company or any Restricted Subsidiary of Debt of the
Company or a Restricted Subsidiary otherwise permitted by Section 4.09;
(17) any Investment acquired by the Company or any of its Restricted
Subsidiaries:
(i) in exchange for any other Investment or accounts receivable held
by the Company or any Restricted Subsidiary in connection with or as a result of
a bankruptcy, workout, reorganization or recapitalization of the Company of such
other Investment or accounts receivable;
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(ii) in satisfaction of judgments against other Persons;
(iii) as a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title with
respect to any secured Investment in default; or
(iv) received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the
Company or any Restricted Subsidiary, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any
trade creditor or customer, or (B) litigation, arbitration or other disputes;
(18) any Investments consisting of purchases and acquisitions of inventory,
supplies, material or equipment or other similar assets in the ordinary course of business, or the
licensing or contribution of intellectual property pursuant to joint marketing arrangements with
other Persons;
(19) advances, loans or extensions of trade credit or prepayments of expenses
or loans or advances made to distributors, in each case in the ordinary course of business by the
Company or any of its Restricted Subsidiaries;
(20) repurchases of the Notes and Obligations under the Credit Facilities;
(21) (a) Investments consisting of the purchase price paid for and reasonable
transaction costs related to acquisitions by the Company or any Restricted Subsidiary of all or
substantially all of the assets or Capital Interests of a Person engaged in a Permitted Business; (b)
Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of
the Company or consolidates, merges or amalgamates with the Company or any of its Restricted
Subsidiaries so long as such Investments were not made in contemplation of such Person
becoming a Restricted Subsidiary or of such consolidation, merger or amalgamation and (c)
Investments consisting of any acquisition of, or licenses for, products or assets used or useful in a
Permitted Business; and
(22) Investments in a Permitted Joint Venture, when taken together with all
other Investments made pursuant to this clause (22) that are at the time outstanding (and not
otherwise converted or applied to another clause of this definition of “Permitted Investments”),
not to exceed $25 million at any one time outstanding.
“Permitted Joint Venture” means any joint venture (which may be in the form of a
limited liability company, partnership, corporation or other entity) in which the Company or any
of its Restricted Subsidiaries is a joint venturer; provided, however, that (a) the joint venture is
engaged solely in a Permitted Business and (b) the Company or a Restricted Subsidiary is
required by the governing documents of the joint venture or an agreement with the other parties
to the joint venture to participate in the management of such joint venture as a member of such
joint venture’s Board of Directors or otherwise.
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“Permitted Liens” means:
(1) Liens on the assets of the Company or any Guarantor which secure
Obligations Incurred under Credit Facilities in an aggregate principal amount not to exceed the
greater of (i) $950 million and (ii) the Secured Debt Cap;
(2) Liens in favor of the Company or any Restricted Subsidiary;
(3) Liens on property of a Person existing at the time such Person is merged
or amalgamated with or into or consolidated with the Company or any Restricted Subsidiary of
the Company (including by way of plan of arrangement), provided that such Liens were not
Incurred in contemplation of or in connection with such merger, amalgamation or consolidation
and do not extend to any assets other than those of the Person merged into, amalgamated or
consolidated with the Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that such Liens were not
Incurred in contemplation of or in connection with such acquisition and do not extend to any
property other than the property so acquired by the Company or the Restricted Subsidiary;
(5) Liens existing on the Issue Date;
(6) pledges or deposits by such Person under workmen’s compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases to which such Person is a
party, or deposits to secure public or statutory obligations of such Person or deposits of cash or
government bonds to secure surety or appeal bonds to which such Person is a party, or deposits
as security for contested taxes or import or customs duties or for the payment of rent, in each
case Incurred in the ordinary course of business;
(7) Liens imposed by law, including carriers’, warehousemen’s and
mechanics’ materialmen’s and repairmen’s Liens, in each case in respect of which a reserve or
other appropriate provisions, if any, as shall be required by IFRS shall have been made in respect
thereof;
(8) Liens for taxes, assessments or other governmental charges not yet subject
to penalties for non-payment or which are being contested in good faith by appropriate
proceedings provided that appropriate reserves required pursuant to IFRS have been made in
respect thereof;
(9) Liens in favor of issuers of surety or performance bonds or letters of credit
or bankers’ acceptances issued pursuant to the request of and for the account of such Person in
the ordinary course of its business; provided, however, that such letters of credit do not secure
Debt;
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(10) Liens securing Swap Contracts and Hedging Obligations, in each case, not
entered into for speculative purposes;
(11) Liens relating to banker’s liens, rights of set off or similar rights and
remedies as to deposit accounts or other funds maintained with a depositary institution; provided
that:
(a) such deposit account is not a dedicated cash collateral account and
is not subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Federal Reserve Board; and
(b) such deposit account is not established by the Company or any
Restricted Subsidiary for the purpose of providing collateral to the depository
institution;
(12) any Lien resulting from the deposit of money or other cash equivalents or
other evidence of indebtedness in trust for the purpose of defeasing Debt of the Company or any
Restricted Subsidiary; provided that the Incurrence of Debt and such defeasance or satisfaction
and discharge are not prohibited by this Indenture;
(13) Liens securing Obligations in respect of Debt (including Capital Lease
Obligations and Purchase Money Debt) permitted by clause (10) of the definition of “Permitted
Debt” hereunder covering only the assets acquired, constructed, installed, improved, repaired or
developed with, or secured by, such Debt;
(14) Liens securing Obligations in respect of (a) Debt permitted by clause (14)
of the definition of “Permitted Debt” hereunder (and any Guarantee thereof) and (b) Debt of
Subsidiaries other than Subsidiary Guarantors; provided, in the case of clause (b), that such Liens
attach only to assets of Restricted Subsidiaries other than Subsidiary Guarantors;
(15) Liens securing Debt permitted by clause (15) of the definition of
“Permitted Debt” hereunder;
(16) Liens on Capital Interests of an Unrestricted Subsidiary that secure Debt
or other obligations of such Unrestricted Subsidiary;
(17) Liens securing Obligations in respect of Refinancing Debt; provided that
any such Lien covers only the assets that secure the Debt being refinanced;
(18) leases, subleases, survey exceptions, encumbrances, 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
properties or Liens incidental to the conduct of the business of such Person or to the ownership
of its properties which were not Incurred in connection with Debt and which do not in the
aggregate materially impair the operation of the business of the Company and its Subsidiaries
taken as a whole;
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(19) Liens arising from Uniform Commercial Code or Personal Property
Security Act (Ontario) (or its equivalent) financing statement filings regarding operating leases
entered into by the Company and the Restricted Subsidiaries in the ordinary course of business;
(20) judgment and attachment Liens not giving rise to an Event of Default and
notices of lis pendens and associated rights related to litigation being contested in good faith by
appropriate proceedings and for which adequate reserves have been made;
(21) Liens arising out of consignment or similar arrangements for the sale of
goods entered into in the ordinary course of business;
(22) Liens securing insurance premium financing arrangements, provided that
such Liens are limited to the applicable unearned insurance premiums;
(23) Liens arising from precautionary Uniform Commercial Code or Personal
Property Security Act (Ontario) (or its equivalent) financing statements or similar or analogous
financing statements in any jurisdiction;
(24) Liens arising from the right of distress enjoyed by landlords or lessors or
Liens otherwise granted to landlords or lessors, in either case, to secure payment of arrears of
rent in respect of leased properties;
(25) deemed trusts or other Liens that are unregistered and that secure amounts
that are not yet delinquent in respect of unpaid wages, vacation pay, employee or non-resident
withholding tax source deductions, goods and services taxes, sales taxes, harmonized sales taxes,
municipal taxes, workers’ compensation, unemployment insurance, pension fund obligations and
realty taxes;
(26) Liens on Capital Interests of any joint venture or Unrestricted Subsidiary
(i) securing obligations of such joint venture or Unrestricted Subsidiary, as the case may be, or
(ii) pursuant to the relevant joint venture agreement or arrangement;
(27) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a
whole, or in part, of any Debt secured by any Lien permitted under this Indenture; provided,
however, that (x) such new Lien pursuant to this clause shall be limited to all or part of the same
property (which, for the avoidance of doubt, may include after-acquired property to the extent
such after-acquired property would be subject to the existing Lien) that secured the original Lien
(plus improvements on and accessions to such property), (y) the Debt secured by such Lien at
such time pursuant to this clause is not increased to any amount greater than the sum of (A) the
outstanding principal amount or, if greater, committed amount of the applicable Debt at the time
the original Lien became a Lien permitted hereunder, and (B) an amount necessary to pay any
fees and expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement, and (z) such new Lien pursuant to this clause shall also continue to
constitute a utilization of any capacity pursuant to the clause under which such initial Lien was
incurred;
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(28) licenses, sublicenses, covenants not to xxx, releases or other rights under
intellectual property granted to others (including in connection with distribution, license and
supply agreements) in the ordinary course of business or in the reasonable business judgment of
the Company or any of the Restricted Subsidiaries;
(29) Liens securing the Company’s or its Subsidiaries’ obligations in relation to
corporate aircraft, including rights under any lease, sublease, charter, management, operating,
crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in
the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and
security deposits and rights in income derived from and proceeds of any of the foregoing, in the
ordinary course;
(30) other Liens securing Debt in an aggregate principal amount not to exceed
the greater of (x) $50 million and (y) 3.0% of Consolidated Total Assets at any one time
outstanding; and
(31) other Liens so long as, after giving effect to any such Lien and the
incurrence of any Debt incurred at the time such Lien is created, or incurred, on a Pro Forma
Basis, the Secured Leverage Ratio (when tested for purposes of the incurrence of such Lien) does
not exceed 3.50:1.00.
“Person” means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Preferred Interests,” as applied to the Capital Interests in any Person, means
Capital Interests in such Person of any class or classes (however designated) that rank prior, as to
the payment of dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Common Interests in such
Person.
“Private Placement Legend” means the legend set forth in Section 2.06(f)(i) to be
placed on all Notes issued under this Indenture, except where otherwise permitted by the
provisions of this Indenture.
“Purchase Amount” has the meaning set forth in the definition of “Offer to
Purchase” hereunder.
“Purchase Date” has the meaning set forth in the definition of “Offer to Purchase”
hereunder.
“Purchase Price” has the meaning set forth in the definition of “Offer to
Purchase” hereunder.
“Pro Forma” or “Pro Forma Basis” means, for purposes of determining
compliance with any provision of this Indenture, including the determination of any financial
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ratio or test or the amount of revenue or Consolidated Adjusted EBITDA, that any Specified
Transaction occurring since the first day of the relevant period to and including the relevant date
such determination is made (including after the relevant quarter or period end, if applicable) shall
be deemed to have occurred as of the first day of the relevant period, including pro forma
adjustments arising out of events attributable to such Specified Transaction (including giving
effect to those specified in accordance with the definitions of Consolidated Adjusted EBITDA
and Consolidated Net Income); provided that, any event, occurrence or transaction that would
otherwise be deemed a Specified Transaction, but for failure to meet the monetary threshold in
the definition thereof, shall also be given effect on a “Pro Forma Basis”. Upon giving effect to a
transaction on a “Pro Forma Basis,” (i) any indebtedness Incurred by the Company or any
Restricted Subsidiaries in connection with such Specified Transaction (or any other transaction
which occurred during the relevant period) shall be deemed to have been Incurred as of the first
day of the relevant period, (ii) if such Debt has a floating or formula rate, then the rate of interest
for such Debt for the applicable period for purposes of the calculations contemplated by this
definition shall be determined by utilizing the rate which is or would be in effect with respect to
such Debt as at the end of the relevant period, (iii) income statement items (whether positive or
negative) and Consolidated Adjusted EBITDA attributable to all property acquired in such
Specified Transaction or to the Investment constituting such Specified Transaction, as
applicable, shall be included as if such Specified Transaction has occurred as of the first day of
the relevant period, (iv) income statement items (whether positive or negative) attributable to all
property disposed of in any Specified Transaction (including any income statement items
attributable to disposed abandoned or discontinued operations), shall be excluded as if such
Specified Transaction has occurred as of the first day of the relevant period and (v) such other
pro forma adjustments which would be permitted or required by Canadian Securities Laws, as
amended, shall be taken into account (in addition to any adjustments permitted pursuant to any
applicable financial definition or test). Interest on a Capital Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by an Authorized Officer of the Company to be
the rate of interest implicit in such Capital Lease Obligation in accordance with IFRS. Interest
on Debt that may optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, bankers’ acceptances market rate, or other
rate, shall be determined to have been based upon the rate actually chosen, or if none, then based
upon such optional rate chosen as the Company or the applicable Restricted Subsidiary may
designate. Any such adjustments included in calculations made on a Pro Forma Basis shall
continue to apply to subsequent calculations of any applicable financial ratios or tests, including
during any subsequent test period in which the effects thereof are expected to be realized.
“Purchase Money Debt” means Debt:
(i) Incurred to finance the purchase, assembly, installation or construction
(including additions and improvements thereto) of any assets (other than Capital Interests) of
such Person or any Restricted Subsidiary; and
(ii) that is secured by a Lien on such assets where the lender’s sole security is
to the assets so purchased, assembled, installed or constructed; and in any case that does not
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exceed 100% of the cost and to the extent the purchase or construction prices for such assets are
or should be included in “addition to property, plant or equipment” in accordance with IFRS.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital Interests” in any Person means a class of Capital Interests other
than Redeemable Capital Interests.
“Qualified Equity Offering” means (i) any public equity offering of Qualified
Capital Interests yielding gross proceeds to either of the Company, or any direct or indirect
parent company of the Company, of at least $20 million or (ii) a private equity offering of
Qualified Capital Interests of the Company, or any direct or indirect parent company of the
Company, other than any such public or private sale to an entity that is an Affiliate of the
Company; provided that, in the case of an offering or sale by a direct or indirect parent company
of the Company, such parent company contributes to the capital of the Company the portion of
the net cash proceeds of such offering or sale necessary to pay the aggregate Redemption Price
(plus accrued interest, if any, to the redemption date) of the Notes to be redeemed pursuant to the
provisions described under Section 3.07(b).
“Rating Agencies” means Xxxxx’x and S&P or if Xxxxx’x or S&P or both shall
not make a rating on the Notes publicly available other than as a result of actions by the
Company, a nationally recognized statistical rating agency or agencies, as the case may be,
selected by the Company which shall be substituted for Xxxxx’x or S&P or both, as the case
may be.
“Redeemable Capital Interests,” in any Person, means any equity security of such
Person that by its terms (or by terms of any security into which it is convertible or for which it is
exchangeable), or otherwise (including the passage of time or the happening of an event), is
required to be redeemed (other than in exchange for Qualified Capital Interests), is redeemable
(other than in exchange for Qualified Capital Interests) at the option of the holder thereof in
whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for
Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to
the Stated Maturity of the Notes; provided that only the portion of such equity security which is
required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of
the holder thereof before such date will be deemed to be Redeemable Capital Interests.
Notwithstanding the preceding sentence, any equity security that would constitute Redeemable
Capital Interests solely because the holders of the equity security have the right to require the
Company to repurchase such equity security upon the occurrence of a change of control or an
asset sale will not constitute Redeemable Capital Interests if the terms of such equity security
provide that the Company may not repurchase or redeem any such equity security pursuant to
such provisions unless such repurchase or redemption complies with Section 4.07. The amount
of Redeemable Capital Interests deemed to be outstanding at any time for the purposes of this
Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may
become obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued
dividends.
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“Record Date” for the interest payable on any applicable Interest Payment Date
means April 1 or October 1 (whether or not a Business Day) preceding such Interest Payment
Date.
“Redemption Price,” when used with respect to any Note to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
“Refinancing Debt” means Debt that refunds, refinances, renews, replaces or
extends any Debt permitted to be Incurred by the Company or any Restricted Subsidiary
pursuant to the terms of this Indenture, whether involving the same or any other lender or
creditor or group of lenders or creditors, but only to the extent that:
(1) the Refinancing Debt is subordinated to the Notes or the Note Guarantees,
as applicable, to at least the same extent as the Debt being refunded, refinanced or extended, if
such Debt was subordinated to the Notes;
(2) the Refinancing Debt is scheduled to mature either (a) no earlier than the
Debt being refunded, refinanced or extended or (b) at least 91 days after the maturity date of the
Notes;
(3) the Refinancing Debt has an Average Life at the time such Refinancing
Debt is Incurred that is equal to or greater than the Average Life of the Debt being refunded,
refinanced, renewed, replaced or extended;
(4) such Refinancing Debt is in an aggregate principal amount that is less than
or equal to the sum of (a) the aggregate principal or accreted amount (in the case of any Debt
issued with original issue discount, as such) then outstanding under the Debt being refunded,
refinanced, renewed, replaced or extended, (b) the amount of accrued and unpaid interest, if any,
on such Debt being refinanced and any reasonably determined premium necessary to accomplish
any such refinancing (including in that limitation any “make whole” premium) and (c) the
amount of reasonable and customary fees, expenses and costs related to the Incurrence of such
Refinancing Debt; and
(5) such Refinancing Debt is Incurred by the same Person (or its successor)
that initially Incurred the Debt being refunded, refinanced, renewed, replaced or extended, except
that the Company or any Guarantor may Incur Refinancing Debt to refund, refinance, renew,
replace or extend Debt of any Restricted Subsidiary of the Company.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or a
Regulation S Permanent Global Note, as appropriate.
“Regulation S Permanent Global Note” means a Global Note substantially in the
form of Exhibit A hereto, bearing the Private Placement Legend, the Global Notes Legend and
the Canadian Restricted Legend (if applicable) and deposited with or on behalf of and registered
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in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Regulation S.
“Regulation S Temporary Global Note” means a temporary Global Note in the
form of Exhibit A, bearing the Private Placement Legend, the Global Notes Legend, the
Canadian Restricted Legend (if applicable) and the Regulation S Temporary Global Notes
Legend and deposited with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
“Regulation S Temporary Global Notes Legend” means the legend set forth in
Section 2.06(f)(iv) to be placed on the Regulation S Temporary Global Note.
“Related Business Assets” means assets (other than cash or Eligible Cash
Equivalents) used or useful in a Permitted Business; provided that any assets received by the
Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a
Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of
securities of a Person, unless upon receipt of the securities of such Person, such Person would
become a Restricted Subsidiary.
“Responsible Officer” means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice president, assistant vice
president, trust officer 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, or
to whom any corporate trust matter is referred because of such Person’s knowledge of and
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private
Placement Legend and the Canadian Restricted Legend (if applicable).
“Restricted Global Note” means a Global Note bearing the Private Placement
Legend, the Global Notes Legend and the Canadian Restricted Legend (if applicable).
“Restricted Investment” means any Investment other than a Permitted Investment.
“Restricted Payment” means any of the following:
(a) any dividend or other distribution declared and paid on the Capital
Interests in the Company or on the Capital Interests in any Restricted Subsidiary of the Company
that are held by, or declared and paid to, any Person other than the Company or a Restricted
Subsidiary of the Company, other than:
(i) dividends, distributions or payments made solely in Qualified
Capital Interests in the Company; and
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(ii) dividends or distributions payable to the Company or a Restricted
Subsidiary of the Company or to other holders of Capital Interests of a Restricted
Subsidiary on a pro rata basis;
(b) any payment made by the Company or any of its Restricted Subsidiaries to
purchase, redeem, acquire or retire any Capital Interests in the Company (including the
conversion into, or exchange for, Debt, of any Capital Interests) other than any such Capital
Interests owned by the Company or any Restricted Subsidiary (other than a payment made solely
in Qualified Capital Interests in the Company);
(c) any payment made by the Company or any of its Restricted Subsidiaries
(other than a payment made solely in Qualified Capital Interests in the Company) to redeem,
repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire
for value (including pursuant to mandatory repurchase covenants), prior to any scheduled
maturity, scheduled sinking fund or mandatory redemption payment, Subordinated Obligations
(excluding any Debt owed to the Company or any Restricted Subsidiary), except payments of
principal and interest in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case, within one year of the due date thereof;
(d) any Investment by the Company or a Restricted Subsidiary in any Person,
other than a Permitted Investment; and
(e) any Restricted Investment.
“Restricted Period”, with respect to any Note, means the period of 40 consecutive
days beginning on and including the later of (a) the day on which such Note is first offered to
Persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of
which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance
with respect to such Note or any predecessor of such Note.
“Restricted Subsidiary” means any Subsidiary that has not been designated as an
“Unrestricted Subsidiary” in accordance with this Indenture.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“S&P” means Standard & Poor’s, a division of The McGraw Hill Companies,
Inc., and any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement
pursuant to which property is sold or transferred by the Company or a Restricted Subsidiary and
is thereafter leased back as a capital lease by the Company or a Restricted Subsidiary.
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“Secured Debt” means, without duplication, (i) any Debt secured by a Lien and
(ii) any Debt of a Non-Guarantor Restricted Subsidiary that is Incurred pursuant to Section
4.09(a).
“Secured Debt Cap” means, as of any date of determination, an amount of
Secured Debt equal to the greatest principal amount of Secured Debt that could have been
Incurred on such date so long as the Company’s Secured Leverage Ratio for its most recently
ended Four Quarter Period would not have been in excess of 3.50 to 1.00.
“Secured Leverage Ratio” means, as of any date of determination (the
“Determination Date”), the ratio of (a) the aggregate principal amount of Secured Debt
determined on a Pro Forma Basis as of the last day of the fiscal quarter for which internal
financial statements are available (net of unrestricted cash and Eligible Cash Equivalents of the
Company and its Restricted Subsidiaries not to exceed $100 million, and excluding any proceeds
of Debt that is Incurred for which the Secured Leverage Ratio is to be calculated or is otherwise
Incurred substantially contemporaneously with such Debt) of the Company and its Restricted
Subsidiaries on the Determination Date (excluding any Hedging Obligations or Swap Contracts,
in each case, not entered into for speculative purposes) to (b) Consolidated Adjusted EBITDA
for the most recently ended Four Quarter Period for which internal financial statements are
available prior to the Determination Date. For purposes of making the computation referred to
above, the Secured Leverage Ratio shall be calculated, if applicable, on a Pro Forma Basis in
respect of clauses (a) and (b) thereof as are appropriate and consistent with the Pro Forma
adjustments set forth in the definition of Consolidated Fixed Charge Coverage Ratio.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X
under the Securities Act and Exchange Act, but shall not include any Unrestricted Subsidiary.
“Specified Transaction” means with respect to any period, any:
(1) Investment involving the acquisition of an operating or geographical unit
of a business or that constitutes an acquisition of all or substantially all of the common stock of a
person or otherwise involves the payment of consideration by the Company and its Restricted
Subsidiaries in excess of $2,000,000;
(2) sale or transfer of assets or property or other asset disposition (including
any disposal, abandonment or discontinuance of operations) that yields gross proceeds to the
Company or any of its Restricted Subsidiaries in excess of $2,000,000 or involves the
abandonment or discontinuation of operations with a value in excess of $2,000,000;
(3) incurrence, amendment, modification, repayment or refinancing of Debt;
(4) Restricted Payment;
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(5) designation or redesignation of an Unrestricted Subsidiary or Restricted
Subsidiary; or
(6) other event,
in each case, that by the terms of this Indenture requires pro forma compliance
with a test or covenant thereunder or requires such test or covenant to be calculated on a Pro
Forma Basis.
“Stated Maturity,” when used with respect to (i) any Note or any installment of
interest thereon, means the date specified in such Note as the fixed date on which the principal
amount of such Note or such installment of interest is due and payable and (ii) any other Debt or
any installment of interest thereon, means the date specified in the instrument governing such
Debt as the fixed date on which the principal of such Debt or such installment of interest is due
and payable.
“Subordinated Obligation” means any Debt of the Company or any Guarantor
(whether outstanding on the Issue Date or thereafter Incurred) that is subordinated or junior in
right of payment to the Notes or the Note Guarantees pursuant to a written agreement to that
effect.
“Subsidiary” means, with respect to any Person, any corporation, limited or
general partnership, trust, association or other business entity of which more than 50% of the
total voting power of shares of the Voting Interests is at the time owned, directly or indirectly,
by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
Unless otherwise specified herein, each reference to a Subsidiary will refer to a
Subsidiary of the Company.
“Subsidiary Guarantor” means a Subsidiary of the Company that is a Guarantor.
“Successor Entity” means a corporation or other entity that succeeds to and
continues the business of Concordia Healthcare Corp.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross currency rate swap
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transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing, whether or not any such transaction is governed by or
subject to any master agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”), including any
such obligations or liabilities under any Master Agreement.
“Transactions” means, collectively:
(1) the consummation of the transactions contemplated by the Asset Purchase
Agreement, dated as of March 9, 2015, by and among Concordia Pharmaceuticals, Inc. (as
purchaser), Covis Pharma S.à.x.x. (as a seller), Covis Injectables S.à.x.x. (as a seller), the
Company (as purchaser parent) and Covis Pharma Holdings S.à.x.x. (as seller parent), together
with all exhibits, schedules and disclosure letters thereto;
(2) the execution, delivery and performance by the Company (as borrower)
and certain Subsidiaries of the Company party thereto from time to time (as guarantors) of the
Credit Agreement and the “Credit Documents” (as defined therein) and the borrowings
contemplated thereby;
(3) the issuance and sale by the Company of new cash common equity
providing for gross proceeds in an aggregate principal amount of up to $450.0 million on or
about the Issue Date;
(4) the issuance and sale by the Company of the Notes and the performance
by the Company and the Guarantors of their respective obligations contemplated by this
Indenture, the Notes and the Note Guarantees;
(5) the refinancing and repayment of existing third party indebtedness for
borrowed money of the Company and its Subsidiaries on or about the Issue Date, including
indebtedness pursuant to the Amended and Restated Credit Agreement, dated as of September
30, 2014, among the Company, certain lenders party thereto and GE Capital Canada Finance,
Inc., as administrative agent, and the release and discharge of security and guarantees in respect
thereof; and
(6) the payment of fees and expenses incurred in connection with the
transactions contemplated by paragraphs (1) through (5) of this definition.
“Treasury Rate” means 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) which has become publicly available at least two
Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to April 15, 2018; provided, however, that if the then remaining
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term of the Notes to April 15, 2018 is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained
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
then remaining term of the Notes to April 15, 2018 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. The Company will (a) calculate the Treasury Rate on the second Business
Day preceding the applicable redemption date and (b) prior to such redemption date, file with the
Trustee an Officer’s Certificate setting forth the Applicable Premium and the Treasury Rate and
showing the calculation of each in reasonable detail.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means U.S. Bank National Association, a national banking association,
as trustee, until a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
“Unrestricted Definitive Note” means one or more Definitive Notes that do not
bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Note” means any Note in global form that does not bear or is
not required to bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Company which at the time of determination shall
be designated as an Unrestricted Subsidiary by the Company in the manner provided in Section
4.18; and
(2) any Subsidiary of an Unrestricted Subsidiary.
“U.S. Government Obligations” means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and credit is pledged
or (b) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such custodian for the
account of the holder of such depositary receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S. Government
Obligations evidenced by such depositary receipt.
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“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities
Act.
“Voting Interests” means, with respect to any Person, securities of any class or
classes of Capital Interests in such Person entitling the holders thereof generally to vote on the
election of members of the Board of Directors or comparable body of such Person or otherwise
direct the management thereof.
“Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company, all
of the Capital Interests of which (other than directors’ qualifying shares) are owned by the
Company or another Wholly Owned Subsidiary.
Section 1.02 Other Definitions.
Term Defined in Section
“Acceptable Commitment” ............................................................................ 4.10(c)
“Additional Amounts” .................................................................................. 2.13(b)
“Affiliate Transaction”................................................................................... 4.11(a)
“Asset Sale Proceeds Application Period” .................................................... 4.10(c)
“Authentication Order” .................................................................................. 2.02(c)
“Code”............................................................................................................ 2.13(c)
“Covenant Defeasance” ................................................................................. 8.02(a)
“Covenant Suspension Event” ....................................................................... 4.19(a)
“Discharge” .................................................................................................... 11.01(a)
“Event of Default” ......................................................................................... 6.01(a)
“Excess Proceeds” ......................................................................................... 4.10(d)
“Expiry Date”................................................................................................. 1.04(j)
“FATCA Withholding” .................................................................................. 2.13(f)
“Initial Default” ............................................................................................. 6.04
“Judgment Currency”..................................................................................... 12.18
“Legal Defeasance” ....................................................................................... 8.01(a)
“Material Change Report” ............................................................................. 4.03(a)(3)
“MD&A”........................................................................................................ 4.03(a)(1)
“Note Register” .............................................................................................. 2.03(a)
“Paying Agent” .............................................................................................. 2.03(a)
“Payor” ........................................................................................................... 2.13(a)
“Reference Date” ........................................................................................... 4.07(a)(3)
“Registrar” .................................................................................................... 2.03(a)
“Reinstatement Date”..................................................................................... 4.19(b)
“relevant date” ............................................................................................... 2.13(c)
“Satisfaction of the Notes” ............................................................................. 4.19(f)
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Term Defined in Section
“SEDAR” ....................................................................................................... 4.03(a)(4)
“Surviving Entity” ......................................................................................... 5.01(a)(1)
“Suspended Covenants” ................................................................................. 4.19(a)
“Suspension Period” ...................................................................................... 4.19(a)
“Tax Act” ....................................................................................................... 2.13(c)
“Tax Redemption Date” ................................................................................. 3.09(a)
“Taxes” .......................................................................................................... 2.13(a)
“Taxing Jurisdiction” ..................................................................................... 2.13(a)
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term defined in Section 1.01 or 1.02 has the meaning assigned to it
therein, and a term used herein that is defined in the Trust Indenture Act, either directly
or by reference therein, shall have the meaning assigned to it therein;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with IFRS;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and words in the plural include
the singular;
(5) provisions apply to successive events and transactions;
(6) unless the context otherwise requires, any reference to an “Appendix,”
“Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article,
Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
(7) the words “herein,” “hereof” and other words of similar import refer to
this Indenture as a whole and not any particular Article, Section, clause or other
subdivision;
(8) the words “including,” “includes” and other words of similar import shall
be deemed to be followed by “without limitation”;
(9) references to sections of, or rules under, the Securities Act, the Exchange
Act or the Trust Indenture Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from time to time;
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(10) unless otherwise provided, references to agreements and other instruments
shall be deemed to include all amendments and other modifications to such agreements or
instruments, but only to the extent such amendments and other modifications are not
prohibited by the terms of this Indenture; and
(11) in the event that a transaction meets the criteria of more than one category
of permitted transactions or listed exceptions, the Company may classify such transaction
as it, in its sole discretion, determines.
Section 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the Company and the
Guarantors. Proof of execution of any such instrument or of a writing appointing any such agent,
or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and
(subject to Section 7.01) conclusive in favor of the Trustee, the Company and the Guarantors, if
made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of
any notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof, (2) if executed by or on behalf of the Company, by a certificate from the
secretary or assistance secretary or other officer performing a similar function, or (3) in any other
manner deemed reasonably sufficient by the Trustee. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall also constitute proof of
the authority of the Person executing the same. The authority of the Person executing the same
may also be proved in any other manner deemed reasonably sufficient by the Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Note shall bind every future Holder of the same Note and the
Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Company or
the Guarantors in reliance thereon, whether or not notation of such action is made upon such
Note.
(e) The Company may set a record date for purposes of determining the
identity of Holders entitled to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made, or to vote on any
action authorized or permitted to be taken by Holders; provided that the Company may not set a
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record date for, and the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in clause (f) below. Unless
otherwise specified, if not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, or in the case of any such vote, prior to such vote, any
such record date shall be the later of 30 days prior to the first solicitation of such consent or vote
or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or
vote. If any record date is set pursuant to this clause (e), the Holders on such record date, and
only such Holders, shall be entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action (including revocation of any action), whether or
not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless made, given or taken on or prior to the applicable Expiry Date by
Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on
such record date. Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiry Date to be given to the Trustee in writing and to each Holder in the manner set
forth in Section 12.01.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in the giving or making of (1) any notice of default under
Section 6.01(a), (2) any declaration of acceleration referred to in Section 6.02, (3) any direction
referred to in Section 6.05 or (4) any request to pursue a remedy referred to in Section 6.06(2). If
any record date is set pursuant to this paragraph, the Holders on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not
such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless made, given or taken on or prior to the applicable Expiry Date by
Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on
such record date. Promptly after any record date is set pursuant to this paragraph, the Trustee, at
the Company’s expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiry Date to be given to the Company and to each Holder in the manner set
forth in Section 12.01.
(g) Without limiting the foregoing, a Holder entitled to take any action
hereunder with regard to any particular Note may do so with regard to all or any part of the
principal amount of such Note or by one or more duly appointed agents, each of which may do
so pursuant to such appointment with regard to all or any part of such principal amount. Any
notice given or action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if given or taken by
separate Holders of each such different part.
(h) Without limiting the generality of the foregoing, a Holder, including a
Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies
duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by Holders, and a
Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial
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owners of interests in any such Global Note through such Depositary’s standing instructions and
customary practices.
(i) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled
under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or
other action provided in this Indenture to be made, given or taken by Holders; provided that if
such a record date is fixed, only the beneficial owners of interests in such Global Note on such
record date or their duly appointed proxy or proxies shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other action, whether or not
such beneficial owners remain beneficial owners of interests in such Global Note after such
record date. No such request, demand, authorization, direction, notice, consent, waiver or other
action shall be effective hereunder unless made, given or taken on or prior to the applicable
Expiry Date.
(j) With respect to any record date set pursuant to this Section 1.04, the party
hereto that sets such record date may designate any day as the “Expiry Date” and from time to
time may change the Expiry Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiry Date is given to the other party hereto in
writing, and to each Holder of Notes in the manner set forth in Section 12.01, on or prior to both
the existing and the new Expiry Date. If an Expiry Date is not designated with respect to any
record date set pursuant to this Section 1.04, the party hereto which set such record date shall be
deemed to have initially designated the 90th day after such record date as the Expiry Date with
respect thereto, subject to its right to change the Expiry Date as provided in this clause (j).
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
(a) The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly
made a part of this Indenture. The Notes may have notations, legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage or with the rules of the Depositary or this
Indenture, all as may be determined by the officers executing such Notes as evidenced by their
execution of the Notes. Each Note shall be dated the date of its authentication. The Notes shall
be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) Notes issued in global form shall be substantially in the form of Exhibit A
hereto (including the Global Notes Legend thereon and the “Schedule of Exchanges of Interests
in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in
the form of Exhibit A attached hereto (but without the Global Notes Legend thereon and without
the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note
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shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges
of Interests in the Global Note” attached thereto and each shall provide that it shall represent up
to the aggregate principal amount of Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount
of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Note will be exchanged for beneficial interests in the Regulation
S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the
authentication of the Regulation S Permanent Global Note, the Trustee will cancel the
Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the Depositary or
its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(c) The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Company pursuant to an Offer to
Purchase as provided in Section 4.10 or Section 4.14. The Notes shall not be redeemable, other
than as provided in Article 3.
Additional Notes ranking pari passu with the Initial Notes may be created and
issued from time to time by the Company without notice to or consent of the Holders and shall
be consolidated with and form a single class with the Initial Notes and shall have the same terms
as to status, redemption or otherwise (other than with respect to the issue date, the purchase price
thereof and the date from which the interest accrues) as the Initial Notes; provided that the
Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with
Section 4.09. The Notes and any Additional Notes shall be substantially identical other than the
issuance dates, offering price, and, if applicable, the date from which interest shall accrue.
Except as described under Article 9, the Initial Notes and any Additional Notes subsequently
issued under this Indenture will be treated as a single class for all purposes under this Indenture,
including waivers, amendments, redemptions and offers to purchase, and shall vote together as
one class on all matters with respect to the Notes, provided that if the Additional Notes are not
fungible with the Notes for U.S. federal income tax purposes the Additional Notes will have a
separate CUSIP number, if applicable. Unless the context requires otherwise, references to
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“Notes” for all purposes of this Indenture include any Additional Notes that are actually issued.
Any Additional Notes shall be issued with the benefit of an indenture supplemental to this
Indenture.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to
receive and shall be fully protected in conclusively relying upon, in addition to the Opinion of
Counsel and Officer’s Certificate required by Section 12.03, an Opinion of Counsel (i) as to the
due authorization, execution, delivery, validity and enforceability of such Additional Notes,
(ii) stating that the form and terms of such Additional Notes have been established by a
supplemental indenture and pursuant to a resolution of the Board of Directors of the Company in
conformity with the provisions of this Indenture and (iii) stating that all laws and requirements in
respect of the execution and delivery by the Company of such Additional Notes have been
complied with.
(d) The provisions of the “Operating Procedures of the Euroclear System” and
“Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers
of beneficial interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Note that are held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
(a) At least one Authorized Officer shall execute the Notes on behalf of the
Company by manual or facsimile signature. If an Authorized Officer whose signature is on a
Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless
be valid.
(b) A Note shall not be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose until authenticated substantially in the form provided for in
Exhibit A attached hereto by the manual signature of an authorized signatory of the Trustee. The
signature shall be conclusive evidence that the Note has been duly authenticated and delivered
under this Indenture.
(c) On the Issue Date, the Trustee shall, upon receipt of a written order of the
Company signed by an Authorized Officer (an “Authentication Order”), authenticate and deliver
the Initial Notes. In addition, at any time and from time to time, the Trustee shall, upon receipt
of an Authentication Order, authenticate and deliver any Additional Notes in an aggregate
principal amount specified in such Authentication Order for such Additional Notes issued
hereunder and, in the case of any issuance of Additional Notes pursuant to Section 2.01, such
Authentication Order shall certify that such issuance is in compliance with Section 4.09.
(d) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference 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 Holders or an Affiliate of the Company.
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Section 2.03 Registrar and Paying Agent.
(a) The Company shall maintain an office or agency in the United States
where Notes may be presented for registration of transfer or for exchange (“Registrar”) and at
least one office or agency in the United States where Notes may be presented for payment
(“Paying Agent”), which shall initially be the Corporate Trust Office of the Trustee located at 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000. The Registrar shall keep a register of the Notes
and of their transfer and exchange (“Note Register”). The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any co-
registrar, and the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without prior notice to any Holder; provided, however,
that no such removal shall become effective until (i) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company and such
successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the
passage of any waiting or notice periods required by the Depositary’s procedures or (ii) written
notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above. The Company shall enter into
an appropriate agency agreement with any Registrar or Paying Agent not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company or any Affiliate incorporated or
organized within the United States of America may act as Paying Agent (except for purposes of
Article 8) or Registrar.
(b) The Company initially appoints DTC to act as Depositary with respect to
the Global Notes. The Company initially appoints the Trustee to act as Paying Agent and
Registrar for the Notes, for which the Trustee shall be Custodian. If, at any time, the Trustee is
not the Registrar, the Registrar shall make available to the Trustee ten days prior to each Interest
Payment Date and at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Note Register.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by such Paying Agent for the payment of principal, premium, if any, or interest, if
any, on the Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, a Paying Agent (if
other than the Company or a Subsidiary) shall have no further liability for the money. If the
Company or an Affiliate of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as Paying Agent until such
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sum of money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and shall promptly notify the Trustee in writing of any action or failure to act as
required by this Section. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee in writing at least five Business Days before
each Interest Payment Date and at such other times as the Trustee may reasonably request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the
names and addresses of the Holders.
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in
this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another
nominee of the Depositary or to a successor Depositary or a nominee of such successor
Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note
unless (i) the Depositary (x) notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Note or (y) has ceased to be a “clearing agency” registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the Company
within 90 days, (ii) there shall have occurred and be continuing a Default with respect to the
Notes or (iii) the Company, at its option, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes (although Regulation S Temporary Global Notes at the Company’s
election pursuant to this clause may not be exchanged for Definitive Notes prior to (a) the
expiration of the Restricted Period and (b) the receipt of any certificates required under the
provisions of Regulation S). Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests
therein will be registered in the names, and issued in any approved denominations, requested by
or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Section 2.07 and Section 2.10.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or Section 2.10, shall be
authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive
Notes issued subsequent to any of the preceding events in (i), (ii) or (iii) above and pursuant to
Sections 2.06(c) or (e). A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Sections 2.06(b) and (c).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be effected through the
Depositary in accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities Act. Transfers of
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beneficial interests in the Global Notes also shall require compliance with either
subparagraph (i), (ii), (iii) or (iv) below, as applicable, as well as one or more of the other
following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in the
Private Placement Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation S Temporary
Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (B) (1) above;
provided that in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global Note prior
to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903; provided, further, that in no
event shall a beneficial interest in an Unrestricted Global Note be credited, or an
Unrestricted Definitive Note be issued, to a Person who is an affiliate (as defined
in Rule 144) of the Company. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.06(g).
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(iii) Transfer of Beneficial Interests to Another Restricted Global Note.
A beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of
Section 2.06(b)(ii) and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; or
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial
interest in any Restricted Global Note may be exchanged by any Holder thereof
for a beneficial interest in an Unrestricted Global Note or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) and:
(A) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such Holder substantially in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (A), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained
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herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (A) above at a time when
an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred pursuant to subparagraph (A) above.
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 or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon the occurrence of any of the
events in (i), (ii) or (iii) of Section 2.06(a) and receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder substantially in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non U.S.
Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate substantially in the form of Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Restricted Subsidiaries, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
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(F) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate
substantially in the form of Exhibit B hereto, including the certifications in
item (3)(c) thereof;
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(g), and the Company
shall execute and the Trustee shall authenticate and mail to the Person designated
in the instructions a Definitive Note in the applicable principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall mail such
Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend, the Canadian Restricted Legend (if applicable) and the Regulation S
Temporary Global Notes Legend, as applicable, and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. Notwithstanding Section 2.06(c)(i)(A) and (C), a beneficial
interest in the Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the form
of a Definitive Note prior to (A) the expiration of the Restricted Period and (B)
the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer
pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note only upon the occurrence of any of the events
in subsection (i), (ii) or (iii) of Section 2.06(a) and if:
(A) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate from such
holder substantially in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
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(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (A), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar
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.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global
Note proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Note, then, upon the occurrence of any of the events in subsection
(i), (ii) or (iii) of Section 2.06(a) and satisfaction of the conditions set forth in
Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and
the Company shall execute and the Trustee shall authenticate and mail to the
Person designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from or through the
Depositary and the Participant or Indirect Participant. The Trustee shall mail such
Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer such
Restricted Definitive 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 Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
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certificate from such Holder substantially in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a
QIB in accordance with Rule 144A, a certificate substantially in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Note is being transferred to the
Company or any of its Restricted Subsidiaries, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(F) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate substantially in the form of Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
applicable Restricted Global Note, in the case of clause (B) above, the applicable
144A Global Note and, in the case of clause (C) above, the applicable Regulation
S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
(A) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder
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substantially in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder substantially in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (A), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar
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.
Upon satisfaction of the conditions in this Section 2.06(d)(ii), the Trustee shall
cancel the Restricted Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraph (ii) or (iii) above at a time when an Unrestricted Global Note has not
yet been issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this
Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer
in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any additional
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certifications, documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e):
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if
the Registrar receives the following:
(A) if the transfer will be made to a QIB in accordance with
Rule 144A, then the transferor must deliver a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder substantially in the form of
Exhibit C hereto, including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate
from such Holder substantially in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (A), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar 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
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Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly and will cause the
aggregate principal amount of the Unrestricted Global Note to be increased accordingly, and the
Company will execute and the Trustee will authenticate and deliver to the Persons designated by
the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate
principal amount.
(f) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution therefor) shall bear the legend in substantially the
following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON
BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE
CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES:
40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH ANY OF THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) [IN THE CASE OF RULE 144A NOTES: AND ON WHICH THE COMPANY
INSTRUCT THE TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED
FROM THE NOTES, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE
INDENTURE RELATING TO THIS SECURITY], ONLY (A) TO THE COMPANY,
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(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: 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 SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT.]”
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv),
(d)(ii), (d)(iii), (e)(ii), or (e)(iii) of this Section 2.06 (and all Notes issued
in exchange therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Notes Legend. Each Global Note shall bear a legend in
substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
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DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”) TO THE
COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE 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.”
(iii) Canadian Restricted Legend. If required under Canadian
Securities Laws, each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution therefor) shall bear a legend in substantially
the following form:
“IN CANADA, UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE
HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT
THE DAY THAT IS FOUR (4) MONTHS AND ONE (1) DAY AFTER THE DAY ON
WHICH THE NOTE INITIALLY WAS ISSUED BY THE COMPANY].”
(iv) Regulation S Temporary Global Notes Legend. Each temporary
Note that is a Global Note issued pursuant to Regulation S shall bear a legend in
substantially the following form:
“THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE INDENTURE REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS
THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE INDENTURE.”
(g) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for Definitive 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 accordance
with Section 2.11. 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 Definitive Notes, the principal amount of Notes
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represented by such Global Note shall be reduced accordingly, and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction. If the beneficial interest is being exchanged for or transferred to a Person
who will take delivery 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 Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Definitive Notes
upon receipt of an Authentication Order in accordance with Section 2.02 or at the
Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest
in a Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but such holder or Holder will be required to pay all taxes
due on transfer and the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Section 2.07, Section 2.10,
Section 3.06, Section 4.10, Section 4.14 and Section 9.04).
(iii) Neither the Registrar nor the Company shall be required to register
the transfer of, or transfer or exchange any, Note selected for redemption or
tendered (and not withdrawn) for repurchase in connection with an Offer to
Purchase or other tender offer.
(iv) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes surrendered
upon such registration of transfer or exchange.
(v) Neither the Company nor the Registrar shall be required (A) to
issue, to register the transfer of, or to transfer or exchange any, Notes during a
period of 15 days before a selection of Notes is to be redeemed under
Section 3.02, (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part, (C) to register the transfer of or to exchange a Note
between a Record Date and the next succeeding Interest Payment Date or (D) to
register the transfer of or to exchange a Note tendered and not withdrawn in
connection with an Offer to Purchase.
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(vi) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of (and premium, if any) and interest, if
any, on such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office
or agency of the Company designated pursuant to Section 2.03, the Company
shall execute, and the Trustee shall authenticate and mail, in the name of the
designated transferee or transferees, one or more replacement Notes of any
authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination or denominations of a like aggregate
principal amount upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Global Notes or Definitive Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and mail,
the replacement Global Notes and Definitive Notes which the Holder making the
exchange is entitled to in accordance with the provisions of Section 2.06.
(ix) All certifications, certificates and Opinions of Counsel required to
be submitted to the Registrar pursuant to this Section 2.06 to effect a registration
of transfer or exchange may be submitted by facsimile or electronically via .pdf
transmission.
(x) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in
any Note (including transfers between or among Depositary participants or
beneficial owners of interests in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
(xi) The Registrar and the Trustee may require a Holder to furnish
appropriate endorsements and transfer documents in connection with any transfer
of Notes.
(xii) By its acceptance of any Definitive Note or interest in any Global
Note bearing the Canadian Restricted Legend, each Holder of the Note
represented thereby acknowledges the restrictions on transfer of such Note set
forth in the Canadian Restricted Legend affixed to such Note and agrees that in
connection with any sale, transfer or trade of such Note or its interest in such Note
to a Person in, or a Person resident of, or a Person acquiring such Note or an
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interest therein for the benefit of another Person resident in, any Province or
Territory of Canada, it will so sell, transfer or trade such Note or interest therein
only in compliance with Canadian Securities Laws.
(xiii) The Trustee shall only be required to affix the Canadian Restricted
Legend to any Definitive Note and any Global Note until (but not after) the day
specified in the Canadian Restricted Legend initially affixed to such Note on the
date of its original issue, and shall affix such legend only upon the written
instructions of the Company.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must
be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any
of them may suffer if a Note is replaced. The Company or the Trustee may charge for their
expenses in replacing a Note, which may include any expenses of the Trustee.
Every replacement Note is a contractual obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.
Section 2.08 Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, those described in this Section 2.08 as not outstanding and, solely to the extent
provided for in Article 8, Notes that are subject to Legal Defeasance or Covenant Defeasance as
provided in Article 8. Except as set forth in Section 2.09, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note; provided that
Notes held by the Company or a Subsidiary will not be deemed to be outstanding for purposes of
Section 3.07(b).
(b) If a Note is replaced or paid pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a
protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code
in effect in the State of New York.
(c) If the principal amount of any Note is considered paid under Section 4.01,
it ceases to be outstanding and interest on it ceases to accrue from and after the date of such
payment.
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(d) If a Paying Agent (other than the Company, a Subsidiary or any Affiliate
thereof) holds, on the maturity date or any redemption date or date for repurchase of the Notes
money sufficient to pay Notes payable or to be redeemed or purchased on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the requisite principal amount of Notes
have concurred in any direction, waiver or consent, Notes beneficially owned by the Company,
or by any Affiliate of the Company, shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded. Notes so owned that have been pledged in good faith shall
not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is
not the Company or any obligor under the Notes or any Affiliate of the Company or of such
other obligor.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes upon surrender of
such temporary Notes at the office or agency of the Company, without charge to the Holder.
Until so exchanged, the Holders and beneficial holders, as the case may be, of temporary Notes
shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of
Notes under this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the
Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose of canceled Notes
in accordance with its customary procedures (subject to the record retention requirement of the
Exchange Act). Certification of the disposal of all canceled Notes shall, upon the written request
of the Company, be delivered to the Company. The Trustee shall retain all canceled Notes in
accordance with its standard procedures (subject to the record retention requirements of the
Exchange Act), and copies of the canceled Notes shall be provided to the Company upon the
Company’s written request. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation. If the Company acquires any of
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the Notes, such acquisition shall not operate as a redemption or satisfaction of Debt represented
by such Notes unless or until the same are delivered to the Trustee for cancellation. The Trustee
shall not authenticate Notes in place of canceled Notes other than pursuant to the terms of this
Indenture.
Section 2.12 Defaulted Interest.
(a) If the Company defaults in a payment of interest on the Notes, it shall pay,
or shall deposit with the Paying Agent money in immediately available funds sufficient to pay,
the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted
interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The
Company shall fix or cause to be fixed each such special record date and payment date; provided
that no such special record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense of the Company)
shall send, or cause to be sent, to each Holder a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
(b) Subject to the foregoing provisions of this Section 2.12 and for greater
certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue
interest, which were carried by such other Note.
Section 2.13 Additional Amounts.
(a) All payments made by or on behalf of the Company or any Guarantor
(each such person who pays or credits such amounts, a “Payor”) under or with respect to the
Notes or any Note Guarantee will be made free and clear of, and without deduction or
withholding for, or on account of, any and all present or future income, stamp and other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings (hereinafter referred to as
“taxes”) now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of any
jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes
or from or through which payments are made by or on behalf of such Payor or any political
subdivision or authority of the foregoing that has the power to tax (each a “Taxing Jurisdiction”),
unless the deduction or withholding is required by applicable law or by the interpretation or
administration thereof by the relevant governmental authority.
(b) At any time a relevant Taxing Jurisdiction requires deductions or
withholdings of taxes from any payment made under or in respect of the Notes, the Payor will
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pay such additional amounts (“Additional Amounts”) as may be necessary so that the net
amounts received by each Holder (including Additional Amounts), after such deduction or
withholding (including withholding or deduction attributable to Additional Amounts payable
hereunder), shall not be less than the amount the Holder would have received had no such
deduction or withholding been required.
(c) However, notwithstanding the foregoing, no Additional Amounts will be
payable to a Holder of a Note by any Payor with respect to: (i) taxes that would not have been
imposed but for the existence of any present or former connection between such Holder or
beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of
the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate,
nominee, trust, partnership or corporation) and any Taxing Jurisdiction (including without
limitation, by virtue of the Holder or beneficial owner being a citizen or resident of, incorporated
in or carrying on a business, having a permanent establishment or having a place of business in
such jurisdiction), other than solely by reason of the Holder or beneficial owner purchasing,
holding or disposing of the Notes; (ii) taxes imposed on, or deducted or withheld from, payments
in respect of the Notes if such payments could have been made without such imposition,
deduction or withholding of such taxes had such Notes been presented for payment (where
presentation is required) within 30 days after the relevant date (except to the extent that the
Holder thereof would have been entitled to such Additional Amounts on presenting a Note for
payment on the last day of such 30 day period); for this purpose, the “relevant date” in relation to
any payments on any Note means: (a) the due date for payment thereof, or (b) if the full amount
of the monies payable on such date have not been received by the Trustee on or prior to such due
date, the date on which the full amount of such monies having been so received, provided that
notice to that effect is duly given to Holders of the Notes in accordance with this Indenture; (iii)
taxes imposed or withheld by reason of the failure by the Holder or beneficial owner of such
Note to provide certification, information, documents or other evidence concerning the
nationality, residence or identity of the Holder or beneficial owner or to make any declaration or
similar claim or satisfy any other reporting requirement relating to such matters, within 30 days
after a specific written request therefor from a Payor, which is required by law, regulation or
administrative practice or applicable treaty as a precondition to exemption from or reduction in
the rate of deduction or withholding of all or part of such taxes; (iv) withholding tax payable
under Part XIII of the Income Tax Act (Canada) (the “Tax Act”) that is imposed on amounts
payable to or for the account of a beneficial owner of a Note as a consequence of such beneficial
owner not dealing at arm’s length (within the meaning of the Tax Act) with a Payor at the time
of such payment; (v) any withholding tax payable under Part XIII of the Tax Act that is imposed
on amounts payable to or for the account of a beneficial owner of a Note as a consequence of
such beneficial owner being, at any time, a “specified non-resident shareholder” (within the
meaning of subsection 18(5) of the Tax Act) of the Company, or, at any time, not dealing at
arm’s length (within the meaning of the Tax Act) with a “specified shareholder” (within the
meaning of subsection 18(5) of the Tax Act) of the Company; (vi) any estate, inheritance, gift ,
sales, transfer or similar tax; (vii) any tax or penalty arising from the Holder’s failure to properly
comply with the Holder’s obligations imposed under Part XVIII of the Tax Act or the similar
provisions of legislation of any other jurisdiction that has entered into an agreement with the
United States of America to provide for the implementation of reporting in that jurisdiction in
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compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as
amended (the “Code”); or (viii) taxes arising from any combination of the foregoing clauses (i)
to (vii).
(d) The Payors will (1) make such withholding or deduction and (2) remit the
full amount deducted or withheld to the relevant government authority in accordance with
applicable law. The Payors will furnish to the Trustee, within 30 days after the date the payment
of any taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that
such payment has been made or other evidence of such payment satisfactory to the Trustee.
(e) The Payors, jointly and severally, will indemnify and hold harmless each
Holder and beneficial owner of Notes and upon written request reimburse each such Holder and
beneficial owner for the amount of (x) any taxes so levied or imposed and paid by such Holder or
beneficial owner (including, for greater certainty, taxes imposed and paid pursuant to subsection
215(4) of the Tax Act and section 803 of the Income Tax Regulations (Canada) or any successor
provision) as a result of payments made under or with respect to the Notes, (y) any liability
(including penalties, interest, additions to tax and reasonable expenses) arising therefrom or with
respect thereto, and (z) any taxes levied or imposed and paid by such Holder or beneficial owner
with respect to any reimbursement under (x) or (y) above; provided, however, that the
indemnification or reimbursement obligations provided for in this Section 2.13(e) shall not
extend to taxes for which the applicable Holder would not have been eligible to receive payment
of Additional Amounts hereunder by virtue of clauses (i) through (viii) of Section 2.13(c) if the
Payor had been required to withhold from such payments or to the extent such Holder received
Additional Amounts with respect to such payments.
(f) In addition, any amounts to be paid by a Payor on the Notes will be paid
net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474
of the Code, any current or future regulations or official interpretations thereof, any agreement
entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules
or practices adopted pursuant to any intergovernmental agreement entered into in connection
with the implementation of such Sections of the Code (“FATCA Withholding”). Neither any
Guarantor nor the Company will be required to pay Additional Amounts on account of any
FATCA Withholding.
(g) Each Holder entitled to any Additional Amounts shall cooperate, to the
extent described in clause (iii) of Section 2.13(c) above, with the Company and the Trustee in
providing any information or documentation that is required by applicable law or by the taxing
authority of the relevant Taxing Jurisdiction and that is reasonably requested in writing by the
Company or the Trustee to confirm the identity and/or tax status of such Holder and any affected
beneficial owner and to assist the Company or Trustee in determining the applicable withholding
tax rate and the amount of Additional Amounts payable in respect thereof.
(h) At least 30 calendar days prior to each date on which any payment under
or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be
obligated to pay Additional Amounts with respect to such payment, the Company will deliver to
the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the
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amounts so payable, and will set forth such other information necessary to enable the Trustee to
pay such Additional Amounts to Holders on the payment date net of any taxes required to be
withheld or deducted.
(i) In addition, the Payor will pay any stamp, issue, registration, court,
documentation, excise or other similar taxes, charges and duties, including any interest, penalties
and any similar liabilities with respect thereto, imposed by any Taxing Jurisdiction at any time in
respect of the execution, issuance, registration or delivery of the Notes, any Note Guarantee, this
Indenture or any other document or instrument referred to hereunder or thereunder and any such
taxes, charges or duties imposed by a Taxing Jurisdiction on any payments made pursuant to the
Notes or as a result of, or in connection with, the enforcement of the Notes, any Note Guarantee
and/or any other such document or instrument.
(j) The obligations under this Section 2.13 will survive any termination,
defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor
Person to the Payor and to any jurisdiction in which such successor is organized or is otherwise
resident or carrying on business for tax purposes or any jurisdiction from or through which
payment is made by such successor or its respective agents.
(k) Whenever this Indenture refers to, in any context, the payment of
principal, premium, if any, interest or any other amount payable under or with respect to any
Note or any Note Guarantee, such reference shall be deemed to include the payment of
Additional Amounts or indemnification payments as described in this Section 2.13, to the extent
that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Section 2.14 CUSIP and ISIN Numbers.
The Company in issuing the Notes may use CUSIP or ISIN numbers (if then
generally in use) and if it does, the Trustee shall use CUSIP or ISIN numbers in notices of
redemption or exchange or in Offers to Purchase as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Notes or as contained in any notice of redemption or exchange or in Offers to
Purchase and that reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption or exchange or Offer to Purchase shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the Trustee in
writing of any change in the CUSIP or ISIN numbers.
Section 2.15 Computation of Interest.
(a) Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
(b) For purposes of the Interest Act (Canada), whenever any interest or fee
under the Notes or this Indenture is calculated using a rate based on a number of days less than a
full year, such rate determined pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the relevant
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year of calculation, and (z) divided by the number of days based on which such rate is calculated.
The principle of deemed reinvestment of interest does not apply to any interest calculation under
the Notes or this Indenture. The rates of interest stipulated in the Notes and this Indenture are
intended to be nominal rates and not effective rates or yields.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07 or Section 3.09, it
shall furnish to the Trustee, at least five Business Days before notice of redemption is required to
be sent or caused to be sent to Holders pursuant to Section 3.03 (unless a shorter notice shall be
agreed to by the Trustee in writing) but not more than 60 days before a redemption date, an
Officer’s Certificate setting forth (1) the paragraph or subparagraph of such Note or Section of
this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the
principal amount of the Notes to be redeemed and (4) the redemption price, if then ascertainable.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
(a) If less than all of the Notes are to be redeemed pursuant to Section 3.07 or
purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased (1) if the Notes are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on which the Notes are listed or (2)
if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem fair and appropriate, all in accordance with the procedures of the
Depositary in the case of Global Notes. In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the then
outstanding Notes not previously called for redemption or purchase.
(b) The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for partial redemption
or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole number multiples of $1,000; no Notes of
$2,000 or less shall be redeemed in part, except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not
$2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase.
(c) After the redemption date, upon surrender of a Note to be redeemed in part
only, a new Note or Notes in principal amount equal to the unredeemed portion of the original
Note, representing the same Debt to the extent not redeemed, shall be issued in the name of the
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Holder of the Notes upon cancellation of the original Note (or appropriate book entries shall be
made to reflect such partial redemption).
Section 3.03 Notice of Redemption.
(a) The Company shall send, or cause to be sent (in the case of Notes held in
book-entry form, by electronic transmission) notices of redemption of Notes at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be
redeemed pursuant to this Article at such Holder’s registered address or otherwise in accordance
with the Applicable Procedures of the Depositary, except that redemption notices may be sent
more than 60 days prior to a redemption date if the notice is issued in connection with Article 8
or Article 11.
(b) The notice shall identify the Notes to be redeemed (including CUSIP and
ISIN number, if applicable) and shall state:
(1) the redemption date;
(2) the redemption price, including the portion thereof representing any
accrued and unpaid interest, if any; provided that in connection with a redemption under
Section 3.07(a), the notice need not set forth the redemption price but only the manner of
calculation thereof;
(3) if any Note is to be redeemed in part only, the portion of the principal
amount of that Note that is to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent
to collect the redemption price;
(6) that, unless the Company defaults in making such redemption payment or
the Paying Agent is prohibited from making such payment pursuant to the terms of this
Indenture, interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph or subparagraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the
CUSIP or ISIN number, if any, listed in such notice or printed on the Notes.
(c) At the Company’s request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense; provided that the Company shall have
delivered to the Trustee, at least five Business Days before notice of redemption is required to be
sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be
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agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in Section 3.03(b).
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is sent in accordance with Section 3.03, Notes called
for redemption become irrevocably due and payable on the redemption date at the redemption
price. The notice, if sent in a manner herein provided, shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such
notice or any defect in the notice to the Holder of any Note designated for redemption in whole
or in part shall not affect the validity of the proceedings for the redemption of any other Note.
Subject to Section 3.05, on and after the redemption date, interest ceases to accrue on Notes or
portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
(a) By no later than 11:00 a.m. (New York City time) on the redemption or
purchase date, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued and unpaid interest, if any, on
all Notes to be redeemed or purchased on that date. The Paying Agent shall promptly mail to
each Holder whose Notes are to be redeemed or repurchased the applicable redemption or
purchase price thereof and accrued and unpaid interest, if any, thereon. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the redemption or
purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or
purchased.
(b) If the Company complies with the provisions of Section 3.05(a), on and
after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a
Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid
interest, if any, to the redemption or purchase date shall be paid on the relevant Interest Payment
Date to the Person in whose name such Note was registered at the close of business on such
Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject
to redemption by the Company. If any Note called for redemption or purchase shall not be so
paid upon surrender for redemption or purchase because of the failure of the Company to comply
with Section 3.05(a), interest, if any, shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to
the redemption or purchase date not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate
and mail to the Holder (or cause to be transferred by book entry) at the expense of the Company
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a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note
surrendered representing the same Debt to the extent not redeemed or purchased; provided that
each new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in
excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary,
only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required
for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a) The Notes may be redeemed, in whole or in part, at any time prior to April
15, 2018, at the option of the Company upon not less than 30 nor more than 60 days’ prior notice
mailed by first class mail (and/or, to the extent permitted by applicable procedures or regulations,
electronically) to each Holder’s registered address, at a Redemption Price equal to 100% of the
principal amount of the Notes to be redeemed plus the Applicable Premium, plus accrued and
unpaid interest, if any, to, but not including, the applicable redemption date (subject to the right
of registered Holders of the Notes on a relevant Record Date to receive interest due on a relevant
Interest Payment Date).
(b) Prior to April 15, 2018, the Company may at its option, with the net
proceeds of one or more Qualified Equity Offerings, redeem up to 35% of the aggregate
principal amount of the outstanding Notes (including Additional Notes) at a Redemption Price
equal to 107.000% of the principal amount thereof, plus accrued and unpaid interest thereon, if
any, to, but not including, the redemption date (subject to the right of registered Holders of the
Notes on a relevant Record Date to receive interest due on a relevant Interest Payment Date);
provided that (1) at least 50% of the principal amount of Notes (including Additional Notes)
remains outstanding immediately after the occurrence of any such redemption (excluding Notes
held by the Company or its Subsidiaries); and (2) any such redemption occurs within 90 days
following the closing of any such Qualified Equity Offering.
(c) Except pursuant to clause (a) or (b) of this Section 3.07 or pursuant to
Section 3.09, the Notes shall not be redeemable at the Company’s option prior to April 15, 2018.
(d) The Notes are subject to redemption, at the option of the Company, in
whole or in part, at any time on or after April 15, 2018, upon not less than 30 nor more than 60
days’ notice at the following Redemption Prices (expressed as percentages of the principal
amount to be redeemed) set forth below, plus accrued and unpaid interest, if any, to, but not
including, the redemption date (subject to the right of registered Holders of the Notes on a
relevant Record Date to receive interest due on a relevant Interest Payment Date), if redeemed
during the 12-month period beginning on April 15 of the years indicated below:
Year Percentage
2018 ........................................................................................................................... 105.250%
2019............................................................................................................................ 103.500%
2020............................................................................................................................ 101.750%
2021 and thereafter .................................................................................................... 100.000%
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(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06.
Section 3.08 Mandatory Redemption; Open Market Purchases.
The Company will not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
The Company and its Affiliates may, at any time and from time to time, acquire
or purchase Notes by means other than a redemption, including by open market purchase, tender
offer, privately negotiated transactions or otherwise and at prices as well as with such
consideration as the Company and its Affiliates may determine, subject to compliance with
applicable securities laws and regulations including, without limitation, Canadian Securities
Laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
Section 3.09 Tax Redemption.
(a) The Company, at its option, may redeem all but not part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice at a redemption price equal to 100% of
the aggregate principal amount thereof, together with accrued and unpaid interest, if any, to, but
not including, the date fixed by the Company for redemption (a “Tax Redemption Date”) and all
Additional Amounts (if any) then due and which will become due on the Tax Redemption Date
as a result of the redemption or otherwise (subject to the right of Holders on the relevant Record
Date to receive interest due on the relevant Interest Payment Date), if, due to a Change in Tax
Law, the Company, in accordance with the terms of the Notes, respectively, would become
obligated, on the next date on which any amount would be payable with respect to the Notes, to
pay to the Holder or beneficial owner of any Note any Additional Amounts, and the Company
cannot avoid any such payment obligation by taking reasonable measures available (including
making payment through a paying agent located in another jurisdiction).
(b) Notice of the Company’s intent to redeem the Notes pursuant to the
provisions set forth in Section 3.09(a) shall not be effective until such time as the Company
delivers to the Trustee both (i) a certificate signed by two of its Authorized Officers stating that
the Company cannot avoid its obligation to pay Additional Amounts by the Company taking
reasonable measures available (including making payment through a paying agent located in
another jurisdiction), and (ii) an opinion of independent legal counsel reasonably acceptable to
the Trustee and qualified to practice law in the relevant Taxing Jurisdiction stating that the
applicable Payor is obligated to pay Additional Amounts because of a Change in Tax Law. The
Trustee will accept and shall be entitled to rely on such certificate and opinion of counsel as
sufficient evidence of the existence and satisfaction of the conditions set forth in Section 3.09(a),
which will be conclusive and binding on the Holders.
(c) This Section 3.09 will apply mutatis mutandis to any successor Persons to
the Company and any jurisdiction in which any successor Person to the Company is incorporated
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or organized or engaged in business or resident for tax purposes or any jurisdiction from or
through which payment is made by or on behalf of such Person on the Notes, and any political
subdivision thereof or therein.
(d) Any redemption pursuant to Section 3.09 shall be made pursuant to the
provisions of Section 3.01 through 3.06.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a) The Company shall pay or cause to be paid the principal, premium, if any,
and interest, if any, on the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest, if any, shall be considered paid on the date due if the Paying
Agent, if other than one of the Company or a Subsidiary, holds as of 11:00 a.m., New York City
time, on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the principal, premium, if any, and interest then due.
(b) The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate
equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest, if any, (without regard to any applicable grace period) at the same rate to
the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered
for registration of transfer or for exchange and where notices and demands to or upon the
Company and the Guarantors in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate additional offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.
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The Company hereby designates the Corporate Trust Office of the Trustee as one
such office or agency of the Company in accordance with Section 2.03.
Section 4.03 Reports and Other Information.
(a) For so long as any Notes are outstanding, the Company will furnish to the
Trustee:
(1) on or prior to the later of (A) 90 days after the end of each fiscal year of
the Company or (B) if the Company is then a "reporting issuer" (or its equivalent) in any
province or territory of Canada, the date on which the Company is required to file (after
giving effect to any available extension) such financial information pursuant to Canadian
Securities Laws, annual financial information of the Company consisting of (i)
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” (“MD&A”) for the fiscal year then ended; (ii) audited financial statements
prepared in accordance with IFRS; and (iii) a presentation of Adjusted EBITDA of the
Company which will be included in the MD&A for the fiscal year then ended and derived
from such financial statements;
(2) on or prior to the later of (A) 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company or (B) if the Company is then a
"reporting issuer" (or its equivalent) in any province or territory of Canada, the date on
which the Company is required to file (after giving effect to any available extension) such
financial information pursuant to Canadian Securities Laws, quarterly financial
information of the Company consisting of (i) an MD&A for the fiscal quarter and year-
to-date period then ended; (ii) unaudited quarterly financial statements prepared in
accordance with IFRS; and (iii) a presentation of Adjusted EBITDA of the Company
which will be included in the MD&A for the fiscal quarter and year-to-date period then
ended and derived from such financial statements;
(3) on or prior to the tenth Business Day following the occurrence of each
event that is required pursuant Canadian Securities Laws to be reported in a material
change report under National Instrument 51-102 “Continuous Disclosure Obligations” (a
“Material Change Report”), if the Company is then a “reporting issuer” (or its equivalent)
in any province or territory of Canada, a copy of the Material Change Report containing
substantially all of the information that is required to be contained in such a report
pursuant to Canadian Securities Laws; provided, however, that no such Material Change
Report will be required to be furnished to the Trustee if the Company determines in its
good faith judgment that such event is not reasonably expected to be material to the
Holders or the business, operations or capital of the Company and its Restricted
Subsidiaries, taken as a whole; and
(4) so long as the Company is obligated to make such filings or furnish such
information, any filings or information filed with and made publicly available by the
applicable Canadian securities regulators under the System for Electronic Document
Analysis and Retrieval (“SEDAR”) website (or any successor system).
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(b) If any document of the type contemplated in clauses (1), (2), (3) and (4) of
Section 4.03(a) is filed and publicly available on SEDAR, the Company shall have, and shall be
deemed to have, satisfied all requirements under this Indenture to furnish such document to the
Trustee upon the filing of such document with the Canadian securities regulators for public
viewing on SEDAR; provided, however, that the Company shall provide a copy of any such
document to the Trustee within a reasonable period of time if the Trustee makes a request
therefor to the Company.
(c) So long as any Notes are outstanding, (1) within 10 Business Days after
furnishing or being deemed to have furnished to the Trustee annual financial information
required by Section 4.03(a)(1), the Company will hold a conference call to discuss such reports
and the results of operations for the relevant reporting period (it being understood that such
conference call may be the same conference call as with the Company’s equity investors and
analysts) and (2) (i) with respect to the reports required by clauses (1), (2) and (3) of Section
4.03(a) above, the Company shall (A) file such reports electronically on the SEDAR website (or
any successor system) or (ii) if reports required by clauses (1), (2) and (3) of Section 4.03(a)
above are not available on SEDAR (or other successor electronic filing system) the Company
will also maintain a password protected website via an Intralinks site or other similar password
protected website to which Holders of the Notes and prospective purchasers of Notes are given
access upon request to the Company and to which all of the reports required by this Section 4.03
are posted.
(d) In addition, the Company will also hold quarterly conference calls for the
Holders of the Notes to discuss financial information for the previous quarter (it being
understood that such quarterly conference call may be the same conference call as with the
Company’s equity investors and analysts). The conference call will be following the last day of
each fiscal quarter of the Company and not later than 10 Business Days from the time that the
Company furnishes or is deemed to have furnished the financial information required by Section
4.03(a)(2).
(e) No fewer than two days prior to any annual or quarterly conference call, as
applicable, the Company will issue a press release announcing the time and date of such
conference call and providing instructions for Holders, securities analysts and prospective
investors to obtain access to such call.
(f) For so long as any Notes remain outstanding and are not freely
transferable under the Securities Act, the Company shall furnish to Holders of the Notes and
prospective purchasers of Notes designated by Holders of the Notes, upon their request, any
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(g) Notwithstanding anything herein to the contrary, for purposes of Section
6.01(a)(4), (1) the Company will be deemed not to have failed to comply with any of its
obligations under Section 4.03(a)(1) until 15 days after the date any financial information
thereunder is due under Canadian Securities Laws, and (2) the Company will be deemed not to
have failed to comply with any of its obligations under Section 4.03(a)(2) until 15 days after the
date any financial information thereunder is due under Canadian Securities Laws. For greater
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certainty, if the Company from time to time files any amendment or amendment and restatement
of any document referred to in Section 4.03(a), the filing of any such amendment or amendment
and restatement thereof shall not constitute a failure of the Company to comply with its
obligations in such covenant and shall not constitute an Event of Default.
(h) Delivery of the foregoing reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, or the Company’s compliance with any of its covenants under this
Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificates).
(i) The Company will deliver or cause to be delivered to the Trustee, within
10 calendar days of the occurrence thereof, an Officer’s Certificate providing notice of any of the
following events, including in reasonable detail a summary of such event or events and the
Company’s plans in respect thereof:
(A) any Change of Control, including, without limitation, the name of the
Person(s) acquiring control of the Company, the amount and form of the consideration
used (e.g., cash, securities or a combination thereof), the basis of the control, the date and
description of the transaction resulting in the Change of Control, the percentage of
beneficial ownership of voting securities of the Company owned by the Person gaining
control, the identity of the Person from whom control was assumed and the effect of such
Change of Control, if any, on any material agreements or arrangements of the Company;
and
(B) an Event of Default specified in clause (7) or (8) of Section 6.01(a).
(j) To the extent any information is not provided as specified in this
Section 4.03 and such information is subsequently provided, the Company will be deemed to
have satisfied its obligations with respect thereto at such time and any Default with respect
thereto shall be deemed to have been cured; provided, however, that this Section 4.03(j) shall not
apply to the Company’s obligations under Section 4.03(i).
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, on an annual basis at the same
time as the Company furnishes its annual financial information referred to in Section 4.03(a)(1),
an Officer’s Certificate stating that a review of the activities of the Company and its Restricted
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Authorized Officer with a view to determining whether the Company and each Guarantor have
kept, observed, performed and fulfilled their obligations under this Indenture, and further stating,
as to such Authorized Officer signing such certificate, that to the best of his or her knowledge,
the Company and each Guarantor have kept, observed, performed and fulfilled each and every
condition and covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a
Default shall have occurred, describing all such Defaults of which he or she may have
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knowledge and what action the Company and each Guarantor are taking or propose to take with
respect thereto).
(b) When any Default has occurred and is continuing under this Indenture, or
if the Trustee or the holder of any other evidence of Debt of the Company or any Subsidiary
gives any notice or takes any other action with respect to a claimed Default, the Company shall
promptly (which shall be no more than five Business Days following the date on which the
Company becomes aware of such Default, receives such notice or becomes aware of such action,
as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and
what action the Company is taking or proposes to take with respect thereto.
Section 4.05 Taxes.
The Company shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments and governmental levies except such as are
contested in good faith and by appropriate negotiations or proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each Guarantor covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of and
after giving effect to the proposed Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or will occur as a consequence thereof;
(2) immediately after giving effect to such Restricted Payment on a
Pro Forma Basis, the Company would be permitted to Incur at least $1.00 of additional
Debt pursuant to Section 4.09(a); and
(3) after giving effect to such Restricted Payment on a Pro Forma
Basis, the aggregate amount expended or declared for all Restricted Payments made on or
after the July 1, 2015 (the “Reference Date”) (excluding Restricted Payments permitted
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by clauses (2), (3), (4), (5), (6) (7), (8), (9), (11), (12) and (13) of Section 4.07(b)) shall
not exceed the sum (without duplication) of:
(i) 50% of the Consolidated Net Income (or, if Consolidated
Net Income shall be a deficit, minus 100% of such deficit) of the Company
accrued on a cumulative basis during the period (taken as one accounting period)
from the Reference Date and ending on the last day of the most recently ended
fiscal quarter for which internal financial information is available at the time of
such Restricted Payment; plus
(ii) 100% of the aggregate net proceeds (including the Fair
Market Value of property other than cash) received by the Company subsequent
to the Reference Date either (i) as a contribution to its common equity capital or
(ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital
Interests, including Qualified Capital Interests issued upon the conversion or
exchange of Debt (including Redeemable Capital Interests) of the Company, and
from the exercise of options, warrants or other rights to acquire such Qualified
Capital Interests (other than, in each case, Capital Interests or Debt issued or sold
to a Subsidiary of the Company); plus
(iii) 100% of the net reduction in Restricted Investments, made
by the Company or any Restricted Subsidiary subsequent to the Reference Date,
in any Person, resulting from (i) payments of interest on Debt, dividends,
repayments of loans or advances, or any sale or disposition of such Restricted
Investments (but only to the extent such items are not included in the calculation
of Consolidated Net Income), or (ii) the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary (or the causing of a Person that is not a
Subsidiary to become a Restricted Subsidiary), not to exceed in the case of any
Person the amount of Investments previously made by the Company or any
Restricted Subsidiary in such Person subsequent to the Reference Date.
(b) Notwithstanding the provisions of Section 4.07(a), the Company and its
Restricted Subsidiaries may take the following actions; provided that, at the time of and after
giving effect to the proposed Restricted Payment, no Default or Event of Default shall have
occurred and be continuing or will occur as a consequence thereof:
(1) the payment of any dividend on Capital Interests in the Company
or a Restricted Subsidiary or the consummation of any irrevocable redemption within 60
days after declaration thereof or the giving of such irrevocable notice, as applicable, if, at
the declaration date or notice thereof, such payment was permitted by the foregoing
provisions of this Section 4.07;
(2) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement of any Capital Interests of the Company by conversion into, or
by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified
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Capital Interests of the Company; provided, however, that the net cash proceeds from
such sale of Qualifying Capital Interests will be excluded from Section 4.07(a)(3)(ii) to
the extent applied to any such purchase, repurchase, redemption, defeasance or other
acquisition or retirement;
(3) the redemption, defeasance, repurchase or acquisition or retirement
for value of any Subordinated Obligations out of the net cash proceeds of a substantially
concurrent issue and sale (other than to a Subsidiary of the Company) of (x) Refinancing
Debt of the Company or such Guarantor, as the case may be, Incurred in accordance with
this Indenture or (y) Qualified Capital Interests of the Company;
(4) the purchase, redemption, retirement or other acquisition for value
of Capital Interests in the Company or any Parent Entity (or any payments to a Parent
Entity for the purposes of permitting any such repurchase) held by directors, officers,
consultants, employees, former directors, former officers, former consultants or former
employees of the Company or any Restricted Subsidiary (or their Immediate Family
Members, estates or beneficiaries under their estates) upon death, disability, retirement or
termination of employment or service or alteration of employment or service status or
pursuant to the terms of any agreement under which such Capital Interests were issued
(including any management equity plan or stock option plan or any other management or
employee benefit plan or agreement, or any stock subscription or shareholder agreement)
and, for the avoidance of doubt, including any principal and interest payable on any
promissory notes issued by the Company or any Parent Entity in connection with such
repurchase, retirement or other acquisition, including any Capital Interests rolled over by
management of the Company in connection with the Transactions; provided that the
aggregate cash consideration paid for such purchase, redemption, retirement or other
acquisition of such Capital Interests does not exceed $10 million in any calendar year;
provided, further, that any unused amounts in any calendar year may be carried forward;
provided, however, that such amount in any calendar year may be increased by an
amount not to exceed (A) the cash proceeds received by the Company or any of its
Restricted Subsidiaries from the sale of Qualified Capital Interests of the Company or
any direct or indirect Parent Entity of the Company (to the extent contributed to the
Company) to employees or consultants of the Company and its Restricted Subsidiaries
that occurs after the Issue Date; provided, however, that the amount of such cash
proceeds utilized for any such repurchase, retirement, other acquisition or dividend will
not increase the amount available for Restricted Payments under Section 4.07(a)(3); plus
(B) the cash proceeds of key man life insurance policies received by the Company and its
Restricted Subsidiaries after the Issue Date (provided, however, that the Company may
elect to apply all or any portion of the aggregate increase contemplated by the proviso of
this clause (4) in any calendar year and, to the extent any payment described under this
clause (4) is made by delivery of Debt and not in cash, such payment shall be deemed to
occur only when, and to the extent, the obligor on such Debt makes payments with
respect to such Debt);
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(5) dividend adjustments and repurchases of Capital Interests deemed
to occur upon the exercise of stock options, warrants or other convertible or exchangeable
securities or the vesting of restricted stock units or deferred stock units (including any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement, or any stock subscription or shareholder agreement);
(6) Restricted Payments (A) to make cash payments in lieu of the
issuance of fractional shares in connection with the exercise of warrants, options or other
securities convertible into or exchangeable for Capital Interests of the Company or the
vesting of restricted stock units or deferred stock units and (B) consisting of (i) payments
made or expected to be made in respect of withholding or similar taxes payable by any
future, present or former officers, directors, employees, members of management or
consultants of the Company, any Restricted Subsidiary or any Parent Entity, in each case
solely to the extent such taxes relate to the foregoing persons’ ownership of Capital
Interests in the Company and/or (ii) repurchases of Capital Interests in consideration of
the payments described in clause (i), including demand repurchases in connection with
the exercise of stock options or the vesting of restricted stock units or deferred stock
units;
(7) payments (or Restricted Payments made to allow any Parent Entity
to pay) for the repurchase of Capital Interests of the Company or any Parent Entity held
by any present or former employee, director, member of management, officer, manager
or consultant (or any Affiliate or family member thereof) as a result of the exercise by
such person of employee stock options or the vesting of restricted stock units or deferred
stock units, in an amount not to exceed $5 million;
(8) the extension of credit that constitutes intercompany Debt, the
Incurrence of which is permitted pursuant to clauses (5), (6) and (7) of the definition of
“Permitted Debt” hereunder;
(9) the declaration and payment of dividends to holders of any class or
series of Redeemable Capital Interests of the Company or any Restricted Subsidiary
Incurred in compliance with Section 4.09 to the extent such dividends are included in the
definition of Consolidated Fixed Charges;
(10) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Obligation (A) at a purchase price
not greater than 101% of the principal amount of such Subordinated Obligation in the
event of a change of control in accordance with provisions similar to Section 4.14 or (B)
at a purchase price not greater than 100% of the principal amount thereof in accordance
with provisions similar to Section 4.10; provided that, prior to or simultaneously with
such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the
Company has complied with its obligations set forth in Section 4.14 of this Indenture;
(11) the payment of regular cash quarterly dividends on the Company’s
common stock not to exceed $20 million in any calendar year;
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(12) other Restricted Payments not in excess of an amount equal to the
greater of (a) $35 million and (b) 2.0% of Consolidated Total Assets in the aggregate
since the Reference Date; provided that if this clause (12) is utilized to make a Restricted
Investment, the amount deemed to be utilized under this clause (12) shall be the amount
of such Restricted Investment at any time outstanding (with the Fair Market Value of
such Investment being measured at the time made and without giving effect to
subsequent changes in value); and
(13) any payments made in connection with the Transactions pursuant
to any agreements or documents related to the Transactions described in the Offering
Memorandum (without giving effect to subsequent amendments, waivers or other
modifications to such agreements or documents).
(c) If the Company makes a Restricted Payment which, at the time of the
making of such Restricted Payment, in the good faith determination of the Company, would be
permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to
have been made in compliance with this Indenture notwithstanding any subsequent adjustment
made in good faith to the Company’s financial statements affecting Consolidated Net Income.
(d) The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of such Restricted Payment of the assets or securities proposed to be
transferred or issued by the Company or any of its Restricted Subsidiaries, as the case may be,
pursuant to such Restricted Payment.
(e) For purposes of determining compliance with this Section 4.07, in the
event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria
of more than one of the categories of Restricted Payments described in clauses (1) to (13) of
Section 4.07(b) and/or one or more of the clauses contained in the definition of “Permitted
Investments” hereunder, or is entitled to be made pursuant to Section 4.07(a), the Company will
be entitled to divide or classify (or later divide, classify or reclassify in whole or in part), in its
sole discretion, such Restricted Payment or Investment (or portion thereof) among such clauses
(1) to (13) of Section 4.07(b), and/or one or more of such clauses contained in the definition of
“Permitted Investments” hereunder, or Section 4.07(a), in each case, in a manner that otherwise
complies with this Section 4.07.
(f) For purposes of determining compliance with any U.S. dollar denominated
restriction on Restricted Payments, the U.S. dollar equivalent of a Restricted Payment
denominated in another currency shall be calculated based on the relevant currency exchange
rate in effect on the date the Company or the Restricted Subsidiary, as the case may be, first
commits to such Restricted Payment.
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, cause or suffer to exist or become effective or enter into
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any encumbrance or restriction (other than pursuant to this Indenture or any law, rule, regulation
or order) on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Interests to the Company or any of its Restricted Subsidiaries or pay any Debt owed to
the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any Restricted
Subsidiary; or
(3) transfer any of its property or assets to the Company or any
Restricted Subsidiary.
(b) However, the preceding provisions shall not prohibit the following
encumbrances or restrictions existing under or by reason of:
(1) any encumbrance or restriction in existence on the Issue Date,
including those under the Credit Agreement, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings
thereof; provided that the amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings, in the good faith judgment of the
Company and conclusively evidenced by an Officer’s Certificate, are no more restrictive
in any material respect, taken as a whole, with respect to such dividend or other payment
restrictions than those contained in these agreements on the Issue Date or refinancings
thereof;
(2) any encumbrance or restriction which exists with respect to an
acquired property in existence at the time of such acquisition pursuant to an agreement,
so long as the encumbrances or restrictions in any such agreement relate solely to the
property so acquired (and are not or were not created in anticipation of or in connection
with the acquisition thereof);
(3) any encumbrance or restriction which exists with respect to a
Person that becomes a Restricted Subsidiary or merges or amalgamates with or into a
Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at
the time such Person becomes a Restricted Subsidiary, but not created in connection with
or in anticipation of such Person becoming a Restricted Subsidiary, and which is not
applicable to any Person or the property or assets of any Person other than such Person or
the property or assets of such Person becoming a Restricted Subsidiary;
(4) any encumbrance or restriction under the terms of Refinancing
Debt Incurred to renew, refund, replace, refinance or extend any agreement containing
any encumbrance or restriction referred to in the foregoing clauses (1) through (3), so
long as the encumbrances and restrictions contained in any such Refinancing Debt are no
less favorable in any material respect to the Holders than the encumbrances and
restrictions contained in the agreements governing the Debt being renewed, refunded,
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replaced, refinanced, or extended, in the good faith judgment of the Company and
conclusively evidenced by an Officer’s Certificate;
(5) customary provisions restricting subletting or assignment of any
lease, contract, or license of the Company or any Restricted Subsidiary or any rights
thereunder;
(6) any encumbrance or restriction by reason of applicable law, rule,
regulation or order;
(7) any encumbrance or restriction under this Indenture, the Notes and
the Note Guarantees;
(8) any encumbrance or restriction under a contract for the sale or
other disposition of assets or Capital Interests, including, without limitation, any
agreement for the sale or other disposition of a Subsidiary, that restricts distributions of
the applicable assets or Capital Interests to be issued or sold, or of any assets of a
Subsidiary to be sold, pending such sale or other disposition;
(9) restrictions on cash and other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(10) customary provisions with respect to the disposition or distribution
of property or assets in joint venture agreements, asset sale agreements, stock sale
agreements (including underwriting agreements), sale leaseback agreements and other
similar agreements;
(11) any restriction with respect to the Company or a Restricted
Subsidiary (or any of its property or assets) imposed by customary provisions in Hedging
Obligations or Swap Contracts, in each case, not entered into for speculative purposes;
(12) Purchase Money Debt and Capital Lease Obligations permitted
under this Indenture for property acquired in the ordinary course of business that impose
restrictions on that property so acquired of the nature described in Section 4.08(a)(3);
(13) Liens securing Debt otherwise permitted to be Incurred under this
Indenture, including Section 4.12; and
(14) any other agreement governing Debt entered into after the Issue
Date that contains encumbrances and restrictions that are not materially more restrictive
with respect to any Restricted Subsidiary than those in effect on the Issue Date with
respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date.
(c) Nothing contained in this Section 4.08 shall prevent the Company or any
Restricted Subsidiary from (i) creating, Incurring, assuming or suffering to exist any Liens
otherwise permitted by Section 4.12 or (ii) restricting the sale or other disposition of property or
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assets of the Company or any of its Restricted Subsidiaries that secure Debt of the Company or
any of its Restricted Subsidiaries Incurred in accordance with Section 4.09 and Section 4.12.
Section 4.09 Incurrence of Debt.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to Incur any Debt (including Acquired Debt); provided, that the Company and any
of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after
giving effect to the Incurrence of such Debt and the receipt and application of the proceeds
therefrom:
(1) the Consolidated Fixed Charge Coverage Ratio of the Company
and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such
Debt (including any other Debt being Incurred contemporaneously), and any other Debt
Incurred since the beginning of the Four Quarter Period had been Incurred and the
proceeds thereof had been applied at the beginning of the Four Quarter Period, and any
other Debt repaid since the beginning of the Four Quarter Period had been repaid at the
beginning of the Four Quarter Period, would be greater than 2.00 to 1.00; and
(2) no Event of Default shall have occurred and be continuing at the
time or as a consequence of the Incurrence of such Debt.
(b) Notwithstanding Section 4.09(a), the Company and its Restricted
Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Debt meets the criteria of more than one of the
types of Debt described in Section 4.09(a) or (b), including categories of Permitted Debt, the
Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any
portion of such item of Debt in any manner that complies with Section 4.09 and shall only be
required to include the amount and type of such Debt in one of such clauses under Section 4.09
or the definition of “Permitted Debt” hereunder; provided that any Debt outstanding on the Issue
Date under any Credit Facility shall at all times be treated as Incurred on the Issue Date pursuant
to clause (1) of the definition of “Permitted Debt” hereunder;
(2) Debt permitted by this Section 4.09 need not be permitted solely by
reference to one provision permitting such Debt but may be permitted in part by one such
provision and in part by one or more other provisions of this Section 4.09 (including categories
of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting,
Debt that is otherwise included in the determination of a particular amount of Debt shall not be
included.
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The accrual of interest, the accretion or amortization of original issue discount
and the payment of interest on Debt in the form of additional Debt or payment of dividends on
Capital Interests in the forms of additional shares of Capital Interests with the same terms will
not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt
denominated in another currency shall be calculated based on the relevant currency exchange
rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in
the case of revolving credit Debt; provided that if such Debt is Incurred as Refinancing Debt to
refinance Debt denominated in another currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
Refinancing Debt does not exceed (i) the principal amount of such Debt being refinanced, plus
(ii) the aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other
costs and expenses Incurred in connection with such refinancing. Notwithstanding any other
provision of this covenant, the maximum amount of Debt that the Company may Incur pursuant
to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the
exchange rate of currencies.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of the Asset Sale at least equal to the Fair Market Value
(such Fair Market Value to be determined at the time of contractually agreeing to such
Asset Sale) of the assets or Capital Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the
Company or such Restricted Subsidiary, as the case may be, is in the form of cash or
Eligible Cash Equivalents.
(b) For the purposes of Section 4.10(a)(2) above, each of the following will be
deemed to be cash:
(1) any liabilities (as shown on the most recent consolidated balance
sheet of the Company or any Restricted Subsidiary) of the Company or any of its
Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any Note Guarantee) that are assumed by the
transferee of any such assets pursuant to a customary assignment and assumption
agreement that releases the Company or such Restricted Subsidiary from further liability;
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(2) any securities, notes or other obligations received by the Company
or any of its Restricted Subsidiaries from the transferee that are converted by the
Company or such Restricted Subsidiary into cash within 180 days of their receipt to the
extent of the cash received in that conversion;
(3) any Designated Non-cash Consideration received by the Company
or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Non-cash Consideration received
pursuant to this clause (3) that is at that time outstanding, not to exceed 2.0% of
Consolidated Total Assets at the time of the receipt of such Designated Non-cash
Consideration (with the Fair Market Value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value); and
(4) any Investment, stock, asset, property or capital expenditure of the
kind referred to in clauses (3), (4), (5) or (6) of Section 4.10(c).
(c) Within 365 days after the receipt of any Net Cash Proceeds from an Asset
Sale (the “Asset Sale Proceeds Application Period”), the Company or the applicable Restricted
Subsidiary, as the case may be, may apply such Net Cash Proceeds, at its option:
(1) to prepay, repay, redeem or purchase any Secured Debt (other than
Subordinated Obligations) of the Company or any Restricted Subsidiary and cause such
Debt to be permanently retired and the related commitment (if any) to be permanently
reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or
repurchased;
(2) to prepay, repay, redeem or purchase any unsecured Debt (other
than Subordinated Obligations) of the Company or any Restricted Subsidiary and cause
such Debt to be permanently retired and the related commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid, repaid,
redeemed or repurchased; provided that to the extent the Company (or the applicable
Restricted Subsidiary, as the case may be) repays any such Debt other than the Notes, the
Company shall offer to purchase an equal and ratable amount of the Notes as provided
under Article 3 by making an Offer to Purchase (in accordance with the procedures set
forth in Section 4.10(d)) to all Holders of Notes to purchase their Notes at 100% of the
principal amount thereof, plus accrued but unpaid interest to, but not including, the date
of purchase, if any;
(3) to acquire all or substantially all of the assets of, or any Capital
Interests of, another Permitted Business, if, after giving effect to any such acquisition of
Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;
(4) to make a capital expenditure in or that is used or useful (as
determined in the good faith judgment of the Company) in a Permitted Business or to
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make expenditures for maintenance, repair or improvement of existing properties and
assets in accordance with the provisions of this Indenture;
(5) to acquire other assets that are not classified as current assets under
IFRS and that are used or useful (as determined in the good faith judgment of the
Company) in a Permitted Business; or
(6) any combination of the foregoing,
provided that, in the case of clause (4) of this Section 4.10(c), a binding
commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of
such commitment so long as the Company or such Restricted Subsidiary enters into such
commitment with the good faith expectation that such Net Cash Proceeds will be applied to
satisfy such commitment within 180 days of the Asset Sale Proceeds Application Period (an
“Acceptable Commitment”) and such Net Cash Proceeds are actually applied in such manner
within the later of 365 days from the consummation of the Asset Sale and 180 days from the date
of the Acceptable Commitment, and, in the event any Acceptable Commitment is later cancelled
or terminated for any reason before the Net Cash Proceeds are applied in connection therewith,
then such Net Cash Proceeds shall constitute Excess Proceeds to the extent the Asset Sale
Proceeds Application Period has expired.
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested
as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of
Excess Proceeds exceeds the greater of (x) $25 million and (y) 1.0% of Consolidated Total
Assets, the Company will, within 30 days after the expiry of the Asset Sale Proceeds Application
Period, make an Offer to Purchase to all Holders of Notes (on a pro rata basis to each series of
Notes), and to all holders of other Debt ranking pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to assets sales, in an amount equal to the
Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal
amount plus accrued and unpaid interest, if any, to, but not including, the date of purchase, and
will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to
Purchase, the Company may use those funds for any purpose not otherwise prohibited by this
Indenture and such remaining Excess Proceeds will no longer constitute Excess Proceeds. If the
aggregate principal amount of Notes and other pari passu Debt tendered into such Offer to
Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be
purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase,
the amount of Excess Proceeds will be reset at zero.
(e) Pending the final application of any Net Cash Proceeds pursuant to this
Section 4.10, such Net Cash Proceeds may be applied temporarily to reduce Debt outstanding
under a revolving credit facility or may otherwise be invested in any manner not prohibited by
this Indenture.
(f) The Company will comply with the applicable requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws and regulations thereunder,
including Canadian Securities Laws, to the extent those laws and regulations are applicable in
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connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that
the provisions of any securities laws or regulations conflict with the provisions of this Indenture,
the Company will comply with the applicable securities laws and regulations and will be deemed
to have complied with its obligations under the provisions of this Section 4.10 by virtue of such
compliance with the applicable securities laws and regulations.
(g) Other than as specifically provided in this Section 4.10, any purchase
pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and
3.06.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction (or series of related transactions), contract, agreement, loan,
advance or Guarantee with, or for the benefit of, any Affiliate of the Company involving
aggregate consideration in excess of $2.5 million (each of the foregoing, an “Affiliate
Transaction”), unless:
(1) such Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Subsidiary than those that could reasonably
have been obtained in a comparable arm’s length transaction by the Company or such
Subsidiary with a Person who is not an Affiliate; and
(2) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving an aggregate consideration in excess of $10 million, the
Company delivers to the Trustee a resolution adopted in good faith by the majority of the
Board of Directors of the Company approving such Affiliate Transaction and set forth in
an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1)
above.
(b) Section 4.11(a) shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to Section
4.07 and any Permitted Investments (other than a Permitted Investment described in
clause (6) of the definition thereof);
(2) the payment of reasonable and customary fees and other benefits
and indemnities to officers, consultants, employees of the Company or a Restricted
Subsidiary, and members of the Board of Directors of the Company or a Restricted
Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other
benefits (including retirement, health, option, deferred compensation and other benefit
plans, and annual retainer fees for directors (or a duly authorized committee thereof)) and
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indemnities to directors, officers and employees of the Company or any Restricted
Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted
Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and
any amendment or modification thereto so long as such amendment or modification is no
less favorable in any material respect to the Holders;
(6) any contribution of capital to the Company or a Restricted
Subsidiary;
(7) transactions permitted by, and complying with, the provisions of
Section 5.01;
(8) any transaction with a joint venture, partnership, limited liability
company or other entity (other than an Unrestricted Subsidiary) that would constitute an
Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an
equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, distributors, clients, suppliers or
purchasers or sellers of goods or services, in each case, in the ordinary course of business
and on terms that are not materially less favorable to the Company or such Restricted
Subsidiary, as the case may be, as determined in good faith by the Company, than those
that could be obtained in a comparable arm’s length transaction with a Person that is not
an Affiliate of the Company;
(10) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment arrangements,
equity purchase agreements, stock options, long term incentive plans and stock
ownership plans approved by the Board of Directors of the Company;
(11) any purchase of Capital Interests (other than Redeemable Capital
Interests) of the Company or a Restricted Subsidiary or any contribution to the equity
capital of the Company or a Restricted Subsidiary;
(12) (i) payments by the Company and any of its Restricted Subsidiaries
pursuant to any tax sharing agreements among any of a Parent Entity, the Company and
any of its Restricted Subsidiaries on customary terms that require each party to make
payments when taxes are due or refunds received of amounts equal to the income tax
liabilities and refunds generated by each such party and (ii) payments by any Parent
Entity, the Company or any of its Restricted Subsidiaries pursuant to any tax sharing
agreements among such Parent Entity, the Company and any of its Restricted
Subsidiaries on customary terms that require each party to make payments when taxes are
due or refunds received of amounts equal to the income tax liabilities and refunds
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generated by each such party calculated on a separate return basis, and payments to the
party generating tax benefits and credits of amounts equal to the value of such tax
benefits and credits made available to the party making the payments; and
(13) transactions in which the Company or any Restricted Subsidiary,
as the case may be, delivers to the Trustee a letter from a nationally recognized
investment bank or accounting or appraisal firm stating substantially to the effect that
such transaction is fair to the Company or such Restricted Subsidiary from a financial
point of view or stating that the terms are not materially less favorable to the Company or
such Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person on an
arm’s length basis.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted Subsidiaries to,
create, Incur, assume or otherwise cause or suffer to exist or become effective any Lien of any
kind securing Debt (other than Permitted Liens) upon any of their property or assets, whether
owned on the Issue Date or acquired thereafter, unless, contemporaneously with the Incurrence
of such Liens, all payments due under this Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured (or in the case of Subordinated Obligations, prior or
senior thereto, with the same relative priority as the Notes shall have with respect to such
Subordinated Obligations) until such time as such obligations are no longer secured by a Lien.
Any Lien created for the benefit of Holders pursuant to this Section 4.12 shall be
automatically and unconditionally released and discharged upon the release and discharge of the
Lien that gave rise to the obligation to secure the payments due under this Indenture and the
Notes.
Section 4.13 Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (1) its corporate existence and the
corporate, partnership, limited liability company or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Restricted Subsidiary and (2) the
material rights, licenses and franchises of the Company and its Restricted Subsidiaries; provided
that the Company shall not be required to preserve any such right, license or franchise, or the
corporate, partnership, limited liability company or other existence of any of its Restricted
Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries,
taken as a whole; and provided, further, that the Company and its Restricted Subsidiaries that are
organized in a jurisdiction in Canada (including a jurisdiction in any province, territory or
political subdivision thereof) shall be permitted to change the jurisdiction of its existence to
another jurisdiction in Canada or the United States (including a jurisdiction in any state,
province, territory or political subdivision thereof).
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Section 4.14 Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will make an
Offer to Purchase all of the outstanding Notes at a Purchase Price in cash equal to 101% of the
principal amount tendered, together with accrued interest, if any, to, but not including, the
Purchase Date; provided that if the Company has exercised its right to redeem all of the Notes
pursuant to Section 3.07 prior to the time the Company would be required to make an Offer to
Purchase, the Company shall not be required to make such Offer to Purchase.
(b) For purposes of this Section 4.14, an Offer to Purchase shall be deemed to
have been made if (i) within 60 days following the date of the consummation of a transaction or
series of transactions that constitutes a Change of Control, the Company commences an Offer to
Purchase for all outstanding Notes at the Purchase Price and (ii) all Notes properly tendered
pursuant to the Offer to Purchase are purchased on the terms of such Offer to Purchase.
(c) The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other applicable securities laws or regulations, including Canadian
Securities Laws, in connection with any repurchase of the Notes pursuant to this Section 4.14.
To the extent that the provisions of any applicable securities laws or regulations conflict with the
provisions of this Indenture, the Company will comply with the applicable securities laws and
regulations and will be deemed to have complied with its obligations under this Indenture by
virtue of such compliance with the applicable securities laws and regulations.
(d) The Company will not be required to make an Offer to Purchase upon a
Change of Control if (i) a third party makes such Offer to Purchase contemporaneously with or
upon a Change of Control in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and such third party purchases all Notes validly
tendered and not withdrawn under such Offer to Purchase or (ii) a notice of redemption has been
given pursuant to Section 3.07.
(e) If Holders of not less than 90% in aggregate principal amount of the
outstanding Notes validly tender and do not withdraw such Notes in an Offer to Purchase and the
Company, or any other Person making an Offer to Purchase in lieu of the Company pursuant to
this Section 4.14, purchases all of the Notes validly tendered and not withdrawn by such Holders,
then the Company or such Person will have the right, upon not less than 15 nor more than 60
days’ prior notice; provided that such notice is given not more than 30 days following such
purchase pursuant to the Offer to Purchase pursuant to this Section 4.14, to redeem all Notes that
remain outstanding following such purchase at a price in cash equal to 101% of the aggregate
principal amount of such Notes, plus, to the extent not already included, accrued and unpaid
interest, if any, on the Notes that remain outstanding to, but not including, the redemption date
(subject to the right of Holders of record on the relevant Record Date to receive interest due on
an Interest Payment Date that is on or prior to the redemption date).
(f) An Offer to Purchase may be made in advance of a Change of Control,
conditional upon the occurrence of such Change of Control, if a definitive agreement is in place
for the Change of Control at the time of launching the Offer to Purchase.
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(g) Other than as specifically provided in this Section 4.14, any purchase
pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and
3.06.
Section 4.15 Additional Note Guarantees.
(a) After the Issue Date, the Company will cause each of its Restricted
Subsidiaries (other than any Restricted Subsidiary that is a “controlled foreign corporation” as
defined under Section 957 of the Code) that (1) is a borrower under any Credit Facility or (2)
Guarantees any Debt of the Company or any of its Restricted Subsidiaries Incurred under any
Credit Facility to Guarantee the Notes pursuant to a supplemental indenture substantially in the
form of Exhibit D attached to this Indenture (or such other documents or instruments in form
reasonably satisfactory to the Trustee); provided that, for the duration of any period during which
no such Credit Facilities exist, the Company will cause a sufficient number of its Restricted
Subsidiaries to Guarantee the Notes such that (i) each Non-Guarantor Subsidiary comprises no
more than 5% of (x) Consolidated Total Assets or (y) Consolidated Adjusted EBITDA and (ii)
all Non-Guarantor Subsidiaries comprise, in the aggregate, no more than 10% of (x)
Consolidated Total Assets or (y) Consolidated Adjusted EBITDA.
(b) Each Note Guarantee will state that it will be limited to an amount not to
exceed the maximum amount that can be Guaranteed by that Restricted Subsidiary without
rendering the Guarantee, as it relates to such Restricted Subsidiary, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(c) Each Note Guarantee shall be released in accordance with the provisions
of Section 10.06.
Section 4.16 Sale and Leaseback Transactions.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Sale and Leaseback Transaction involving an aggregate amount in
excess of $10 million unless:
(1) the consideration received in such Sale and Leaseback Transaction
is at least equal to the Fair Market Value of the property sold;
(2) prior to and after giving effect to the Attributable Debt in respect
of such Sale and Leaseback Transaction, the Company and such Restricted Subsidiary
comply with Section 4.09; and
(3) at or after the time of giving effect to the Attributable Debt in
respect of such Sale and Leaseback Transaction, the Company and such Restricted
Subsidiary comply with Section 4.10.
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Section 4.17 Business Activities.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than a Permitted Business.
Section 4.18 Creation of Unrestricted Subsidiaries.
(a) After the Issue Date, the Company may designate any Subsidiary of the
Company to be an “Unrestricted Subsidiary” as provided in this Section 4.18, in which event
such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such
Subsidiary will be deemed to be an Unrestricted Subsidiary.
(b) The Board of Directors of the Company may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a
Subsidiary through merger, amalgamation, consolidation, arrangement or Investment therein) to
be an Unrestricted Subsidiary after the Issue Date only if:
(1) neither the Company nor any of its Restricted Subsidiaries:
(A) provides credit support for, or Guarantee of, any Debt of
such Subsidiary or any Subsidiary of such Subsidiary (including any undertaking,
agreement or instrument evidencing such Debt);
(B) is directly or indirectly liable for any Debt of such
Subsidiary or any Subsidiary of such Subsidiary; or
(C) has any obligation to maintain or preserve such
Subsidiary’s financial condition or to cause such Subsidiary to achieve any
specified levels of operating results, including by way of subscription for
additional Capital Interests of such Subsidiary; and such Subsidiary does not own
any Capital Interests of, or own or hold any Lien on any property of, any
Restricted Subsidiary of the Company; and
(2) either:
(A) the Subsidiary to be so designated has total assets of $2
million or less; or
(B) the Company could make a Restricted Payment at the time
of designation in an amount equal to the greater of the Fair Market Value or net
book value of such Subsidiary pursuant to Section 4.07 (and such amount is
thereafter treated as a Restricted Payment for the purpose of calculating the
amount available for Restricted Payments thereunder).
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(c) Any such designation by the Company shall be evidenced to the Trustee
by filing with the Trustee an Officer’s Certificate certifying that such designation complies with
the foregoing conditions.
(d) The Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary of the Company; provided that, immediately after giving effect to such
designation, (i) the Company could Incur at least $1.00 of additional Debt pursuant to Section
4.09(a) on a Pro Forma Basis taking into account such designation, and (ii) the Company could
Incur the Liens on the property and assets of such Unrestricted Subsidiary pursuant to Section
4.12.
(e) Nothing in this Indenture shall prevent the Company or a Restricted
Subsidiary from pledging the Capital Interests of any Unrestricted Subsidiary so long as such
transaction otherwise complies with the provisions of this Indenture.
Section 4.19 Covenant Suspension on Investment Grade Rating.
(a) During any period of time (a “Suspension Period”) that:
(1) the Notes have Investment Grade Ratings from both of the Rating
Agencies; and
(2) no Default or Event of Default has occurred and is continuing,
(the occurrence of the events described in the foregoing clauses (1) and (2) being
collectively referred to as a “Covenant Suspension Event”), the Company and its
Restricted Subsidiaries will not be subject to the provisions of Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.16 and 5.01(a)(3) (collectively, the “Suspended Covenants”).
(b) In the event that the Company and its Restricted Subsidiaries are not
subject to the Suspended Covenants with respect to the Notes for any Suspension Period and,
subsequently, (i) either one or both Rating Agencies withdraws its rating or downgrades the
rating assigned to the Notes below the required Investment Grade Rating or (ii) the Company or
any of its affiliates enters into an agreement to effect a transaction that would result in a Change
of Control and either one or both Rating Agencies indicate that, if consummated, such
transaction (alone or together with any related recapitalization or refinancing transactions) would
cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings
assigned to the Notes below an Investment Grade Rating, and such event in clause (i) or (ii)
occurs prior to the Satisfaction of the Notes (such date of withdrawal or downgrade in clause (i)
or (ii), a “Reinstatement Date”), then the Company and its Restricted Subsidiaries will, after the
Reinstatement Date, again be subject to the Suspended Covenants with respect to future events
for the benefit of the Notes (unless and until a Suspension Event again exists) until the
Satisfaction of the Notes.
(c) On the Reinstatement Date, all Debt Incurred during the Suspension
Period shall be classified as having been Incurred pursuant to Section 4.09(a) or, at the
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Company’s option, one of the clauses set forth in the definition of “Permitted Debt” hereunder
(to the extent such Debt would be permitted to be Incurred thereunder as of the Reinstatement
Date and after giving effect to Debt Incurred prior to the Suspension Period and outstanding on
the Reinstatement Date), and subject to Section 4.09. To the extent such Debt would not be so
permitted to be Incurred pursuant to Section 4.09(a) or (b), such Debt shall be deemed to have
been outstanding on the Issue Date, so that it is classified as permitted under clause (4) of the
definition of “Permitted Debt” hereunder.
(d) Calculations made after the Reinstatement Date of the amount available to
be made as Restricted Payments under Section 4.07 shall be made as though Section 4.07 had
been in effect since the Issue Date and throughout the Suspension Period. Accordingly,
Restricted Payments made during the Suspension Period shall reduce the amount available to be
made as Restricted Payments under Section 4.07(a) to the extent provided therein.
(e) Notwithstanding that the Suspended Covenants may be reinstated, no
Default or Event of Default will be deemed to have occurred as a result of a failure to comply
with the Suspended Covenants during a Suspension Period (or on the Reinstatement Date or after
a Suspension Period based solely on events that occurred during the Suspension Period).
(f) During a Suspension Period, but prior to the repayment, repurchase,
retirement or redemption of all of the outstanding principal amount of the Notes or defeasance or
satisfaction and discharge of this Indenture (collectively, the “Satisfaction of the Notes”), the
Company may not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries
pursuant to this Indenture unless the Company could have designated such Subsidiaries as
Unrestricted Subsidiaries in compliance with this Indenture assuming the Suspended Covenants
had not been suspended.
(g) The Company will provide prompt written notice to the Trustee of any
Covenant Suspension Event and any Reinstatement Date. The Trustee is not required under this
Indenture to monitor the ratings of the Notes or to give notice to the Holders of the occurrence of
any Covenant Suspension Event or any Reinstatement Date.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Amalgamation, Arrangement, Consolidation or Sale
of All or Substantially All Assets.
(a) The Company will not, in any transaction or series of transactions,
consolidate or amalgamate with or merge into any other Person, including by way of plan of
arrangement (other than a merger or amalgamation of a Restricted Subsidiary into the Company
in which the Company or the Person continuing from such amalgamation is the continuing
Person), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of
the assets of the Company and its Restricted Subsidiaries (determined on a consolidated basis),
taken as a whole, to any other Person, unless:
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(1) either: (a) the Company or the Person continuing from such amalgamation
shall be the continuing Person or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or amalgamated, or the Person
that acquires, by sale, assignment, conveyance, transfer, lease or other disposition, all or
substantially all of the property and assets of the Company (such Person, the “Surviving
Entity”), (1) shall be a corporation, partnership, limited liability company or similar
entity organized and validly existing under the laws of Canada or the United States or, in
each case, any political subdivision thereof or any state, province or territory thereof or
the District of Columbia, and (2) shall expressly assume, by a supplemental indenture (or
such other documents or instruments in form reasonably satisfactory to the Trustee), the
due and punctual payment of all amounts due in respect of the principal, premium, if any,
and interest, if any, on the Notes and the performance of the covenants and obligations of
the Company under this Indenture; provided that, if at any time the Company or its
Successor Entity is not a corporation, there shall be a co-issuer of the Notes that is a
corporation;
(2) immediately after giving effect to such transaction or series of transactions
on a Pro Forma Basis (including, without limitation, any Debt Incurred in connection
with or in respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing or would result therefrom;
(3) immediately after giving effect to any such transaction or series of
transactions on a Pro Forma Basis (including, without limitation, any Debt Incurred in
connection with or in respect of such transaction or series of transactions) as if such
transaction or series of transactions had occurred on the first day of the determination
period:
(A) the Company (or the Surviving Entity, if the Company is not
continuing) would be able to Incur at least $1.00 of additional Debt pursuant to
Section 4.09(a); or
(b) the Consolidated Fixed Charge Coverage Ratio of the Company
(or the Surviving Entity, if the Company is not continuing) and its Restricted
Subsidiaries would be equal to or greater than such ratio for the Company and its
Restricted Subsidiaries immediately prior to such transaction or series of
transactions;
(4) the Company delivers, or causes to be delivered, to the Trustee, in form
satisfactory to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, amalgamation, sale, conveyance, assignment,
transfer, lease or other disposition, and such supplemental indenture, if any, complies
with the requirements of this Indenture.
(b) Notwithstanding Section 5.01(a), failure to satisfy clauses (2) and (3) of
Section 5.01(a) will not prohibit:
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(1) any merger or amalgamation between the Company and a Restricted
Subsidiary that is a Wholly Owned Subsidiary; or
(2) any merger or amalgamation between the Company and an Affiliate
incorporated solely for the purpose of converting the Company into a Person organized
under the laws of Canada or the United States or, in each case, any political subdivision
or state, province or territory thereof (other than its then current state, province, territory
or political subdivision of organization), or for the purpose of changing its form of
organization; provided, in each case, the amount of Debt of the Company and its
Restricted Subsidiaries is not increased thereby or the Company is otherwise in
compliance with the conditions and covenants of this Indenture.
Section 5.02 Surviving Entity Substituted.
Upon any consolidation, merger, amalgamation, or arrangement, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries in accordance with Section 5.01:
(a) the Surviving Entity (if other than the Company) shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
amalgamation, arrangement, winding up, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the Company shall refer
instead to the Surviving Entity and not to the Company), and may exercise every right
and power of, the Company under this Indenture, the Notes and the Note Guarantees with
the same effect as if such Surviving Entity had been named as the Company herein;
provided that, in the case of a lease of all or substantially all the Company’s assets, the
predecessor Person shall be relieved of all such obligations; and
(b) Subsidiaries of any Surviving Entity (if other than the Company) will,
upon such transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to this Indenture and all Debt, and all
Liens on property or assets, of the Surviving Entity and its Subsidiaries which are
deemed to be Restricted Subsidiaries that was not Debt, or were not Liens on property or
assets, of the Company and its Subsidiaries immediately prior to such transaction or
series of transactions shall be deemed to have been Incurred upon such transaction or
series of transactions.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a) Each of the following is an “Event of Default”:
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(1) default in the payment of principal of (or premium, if any, on) any Note
when due and payable (whether at Stated Maturity or upon repurchase, acceleration,
optional redemption or otherwise);
(2) default in the payment of any interest upon any Note when it becomes due
and payable, and continuance of such default for a period of 30 days;
(3) except as permitted by this Indenture, any Note Guarantee of any
Significant Subsidiary required to be a Guarantor pursuant to this Indenture (or any group
of Restricted Subsidiaries required to be Guarantors pursuant to this Indenture that, taken
together, would constitute a Significant Subsidiary), shall for any reason cease to be, or it
shall be asserted by any such Guarantor or the Company not to be, in full force and effect
and enforceable in accordance with its terms;
(4) default in the performance, or breach, of any covenant or agreement of the
Company or any Guarantor in this Indenture (other than a covenant or agreement a
default in whose performance or whose breach is specifically addressed in clause (1), (2)
or (3) above), and continuance of such default or breach for a period of 60 days after
written notice thereof has been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of the
outstanding Notes;
(5) a default or defaults under any bonds, debentures, notes or other evidences
of Debt (other than the Notes) by the Company or any Restricted Subsidiary having,
individually or in the aggregate, a principal or similar amount outstanding of at least $35
million (or its foreign currency equivalent), whether such Debt now exists or shall
hereafter be created, which default or defaults (A) shall have resulted in the acceleration
of the maturity of such Debt prior to its express maturity or (B) shall constitute a failure
to pay principal of at least $35 million (or its foreign currency equivalent) on such Debt
when due and payable after the expiration of any applicable grace period with respect
thereto;
(6) the entry against the Company or any Restricted Subsidiary that is a
Significant Subsidiary of a final judgment or final judgments for the payment of money
in an aggregate amount in excess of $35 million (or its foreign currency equivalent), by a
court or courts of competent jurisdiction, which judgments remain undischarged,
unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days; or
(7) the Company or any Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, other than in connection with solvent reconstructions or reorganizations
otherwise permitted under this Indenture, pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences proceedings to be adjudicated bankrupt or insolvent;
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(B) consents to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking an
arrangement of debt, reorganization, dissolution, winding up or relief under
applicable Bankruptcy Law;
(C) consents to the appointment of a custodian, receiver, interim
receiver, receiver and manager, liquidator, assignee, trustee, sequestrator or other
similar official of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors or takes
any comparable action under any foreign laws relating to insolvency;
(E) generally is not paying its debts as they become due; or
(F) takes any corporate action in furtherance of any such actions in this
paragraph (7); or
(8) an involuntary case or proceeding shall be commenced or an involuntary
petition, application or other originating process shall be filed with a court of competent
jurisdiction under any Bankruptcy Law that seeks:
(A) to adjudicate the Company, any Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, a bankrupt or insolvent;
(B) the appointment of a custodian, receiver, interim receiver, receiver
and manager, liquidator, assignee, trustee, sequestrator or other similar official of
the Company, any Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary, or for all or
substantially all of the property of the Company, any Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary; or
(C) the liquidation, dissolution, readjustment of debt, reorganization or
winding up of the Company, or any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary;
and such case, proceeding, petition, application or other process shall continue
undismissed and unstayed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered.
(b) In the event of a declaration of acceleration of the Notes solely because an
Event of Default described in clause (5) of Section 6.01(a) has occurred and is continuing, the
declaration of acceleration of the Notes shall be automatically rescinded and annulled if:
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(1) the default triggering such Event of Default pursuant to clause (5) of
Section 6.01(a) shall be remedied or cured by the Company or any of its Restricted
Subsidiaries or waived by the holders of the relevant Debt within 20 Business Days after
the declaration of acceleration with respect thereto; and
(2) (A) the rescission and annulment of the acceleration of the Notes would
not conflict with any judgment or decree of a court of competent jurisdiction obtained by
the Trustee for the payment of principal, premium, if any, or interest due on the Notes
and (B) all existing Events of Default, except nonpayment of principal, premium, if any,
or interest on the Notes that became due solely because of the acceleration of the Notes,
have been cured or waived.
Section 6.02 Acceleration.
(a) If an Event of Default (other an Event of Default specified in clause (7) or
(8) of Section 6.01(a) with respect to the Company) occurs and is continuing, the Trustee by
written notice to the Company, specifying the Event of Default, or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes by written notice to the Company and
the Trustee, may, and the Trustee at the written request of such Holders shall, declare the
principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due
and payable immediately. Upon such a declaration, such principal, premium, if any, and accrued
and unpaid interest, if any, shall be due and payable immediately.
(b) If an Event of Default specified in clause (7) or (8) of Section 6.01(a)
occurs with respect to the Company and is continuing, the principal of, premium, if any, and
accrued and paid interest, if any, on all the Notes shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holders.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and interest, if any, on the
Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the
outstanding Notes may on behalf of the Holders of all the Notes waive any past Default or Event
of Default and its consequences hereunder, except a Default or Event of Default:
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(1) in any payment in respect of the principal of (or premium, if any) or
interest on any Notes (including any Note which is required to have been purchased pursuant to
an Offer to Purchase which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under the Indenture
cannot be modified or amended without the consent of the Holder of each outstanding Note
affected,
each of which, for the avoidance of doubt, shall require the consent of all the
Holders of the Notes outstanding.
Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no
such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05 Control by Majority.
The Holders of a majority in aggregate principal amount of the outstanding Notes
may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with applicable law or this
Indenture, the Notes or any Note Guarantee, or that the Trustee determines in good faith is
unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal
liability or expense for which the Trustee has not been offered an indemnity reasonably
satisfactory to it.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, no Holder of a Note may pursue any remedy with respect
to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event
of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes have requested in writing that the Trustee pursue the remedy;
(3) such Holders have offered and if requested, agreed to provide, the Trustee
with security or indemnity reasonably satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee has not complied with such written request made hereunder
within 60 days after the receipt thereof and the offer of, and, if requested, the agreement
to provide security or indemnity; and
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(5) the Holders of a majority in aggregate principal amount of the then
outstanding Notes have not given the Trustee a direction that, in the reasonable opinion
of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder, it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not any actions or forbearances by a Holder are unduly
prejudicial to other Holders.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to
receive payment of principal, premium, if any, and interest, if any, on its Note, on or after the
respective due dates expressed or provided for in such Note (including in connection with an
Offer to Purchase), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Company and any other obligor on the Notes, including the Guarantors, for the whole
amount of principal of, premium, if any, and interest, if any, remaining unpaid on the Notes,
together with interest, if any, on overdue principal and, to the extent lawful, interest, if any, and
such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents
and counsel.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceedings, the Company, the Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy are, to the extent permitted by law, cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
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otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee may file proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes, including the Guarantors), its creditors or its
property and is entitled and empowered to participate as a member in any official committee of
creditors appointed in such matter and to collect, receive and distribute any money or other
property payable or deliverable on any such claims. Any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any other amounts
due the Trustee under Section 7.07. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 out of the bankruptcy estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.13 Priorities.
If the Trustee collects any money or property pursuant to this Article 6, it shall
pay out the money in the following order:
(1) to the Trustee and its agents and attorneys for amounts due under
Section 7.07, including payment of all reasonable compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;
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(2) to Holders for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any,
and interest, if any, respectively; and
(3) to the Company or to such party as a court of competent jurisdiction shall
direct, including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.13. Promptly after any record date is set pursuant to this Section 6.13, the Trustee
shall cause notice of such record date and payment date to be given to the Company and to each
Holder in the manner set forth in Section 12.01.
Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in such suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith or willful misconduct on its part, the Trustee
may, conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically required to be
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furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or bad faith or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section
7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith
by a Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
hereof.
(d) Subject to this Article 7, if an Event of Default occurs and is continuing,
the Trustee shall be under no obligation to exercise any of its rights or powers under this
Indenture at the request or direction of any of the Holders unless the Holders have offered to the
Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense.
(e) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust under Article 8.
(g) No provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this
Section 7.01.
Section 7.02 Rights of Trustee.
(a) In the absence of bad faith or willful misconduct on its part, the Trustee
may conclusively rely on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or matter stated in the
document, but, in the case of any document which is specifically required to be furnished to the
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Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine
whether it conforms to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel or both conforming to Section 12.03. The Trustee shall not
be liable for any action it takes or omits to take in good faith in conclusive reliance on the
Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in
good faith which it believes to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and the Notes,
including any Opinion of Counsel, shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel, including any Opinion of Counsel.
(f) The Trustee shall not be required to give any bond or surety in respect of
the performance of its powers and duties hereunder.
(g) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the part of the
Company, except as otherwise set forth herein, but the Trustee may require of the Company full
information and advice as to the performance of the covenants, conditions and agreements
contained herein.
(h) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty.
(i) Except for an Event of Default under Sections 6.01(a)(1) or (2) hereof, 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 actual knowledge thereof or
shall have received from the Company or the Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding written notice thereof at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture. In the absence of any such
notice or actual knowledge, and except for a default under Sections 6.01(a)(1) or (2) hereof, the
Trustee may conclusively assume that no Default or Event of Default exists.
(j) The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder.
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(k) In no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances and that the Company may elect to
replace the Trustee pursuant to Section 7.08(a)(4) under such circumstances.
(l) In no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including, but not limited to,
loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
(m) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate and any resolution of the Board of Directors
may be sufficiently evidenced by a board resolution.
(n) The Trustee may request that the Company deliver a certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which certificate may be updated and delivered to the Trustee
at any time by the Company in its discretion.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the same with like
rights. However, in the event that a Responsible Officer of the Trustee becomes aware of any
conflicting interest at the time a Default or Event of Default has occurred, the Trustee must
eliminate such conflict within 90 days or resign, unless such Default or Event of Default has
been cured or waived prior to such 90th day. The Trustee must also comply with Section 7.10.
Section 7.04 Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s
use of the proceeds from the Notes, and it shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Trustee’s certificate of authentication.
To the extent permitted by applicable law, no recourse may be taken, directly or
indirectly, with respect to the obligations of the Company or the Guarantors under the Note, the
Note Guarantees or this Indenture or any related documents, any certificate or other writing
delivered in connection therewith, against (i) the Trustee in its individual capacity, (ii) any
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partner, owner, beneficiary, agent, officer, director, employee, agent, successor or assign of the
Trustee, each in its individual capacity, or (iii) any holder of equity in the Trustee.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a Responsible
Officer of the Trustee, the Trustee shall send to each Holder a notice of the Default within
30 days after it occurs. Except in the case of an Event of Default specified in clauses (1) or (2)
of Section 6.01(a), the Trustee may withhold from the Holders notice of any continuing Default
if the Trustee determines in good faith that withholding the notice is in the interests of the
Holders. Notice to Holders under this Section 7.05 shall be given in the manner and to the extent
provided in Trust Indenture Act Section 313(c) (whether or not applicable by law).
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) The Trustee shall transmit to Holders reports concerning the Trustee and
its actions under this Indenture. The interval between transmission of reports to be transmitted at
intervals shall be 12 months. Such report shall be due on March 1 of each year following the
first issuance of Notes.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the Notes are listed, with
the Commission and with the Company. The Company shall promptly notify the Trustee in
writing when the Notes are listed on any stock exchange and of any delisting therefrom.
Section 7.07 Compensation and Indemnity.
(a) The Company and the Guarantors, jointly and severally, shall pay to the
Trustee from time to time such compensation for its services as shall be agreed to in writing from
time to time by the Company, the Guarantors and the Trustee. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all documented and reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the documented and reasonable compensation and
expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
The Company and the Guarantors, jointly and severally, shall indemnify the Trustee, its agents,
representatives, officers, directors, employees and attorneys against any and all loss, liability,
damage, claim (whether asserted by the Company, a Guarantor, a Holder or any other person) or
expense (including documented and reasonable compensation and expenses and disbursements
of the Trustee’s counsel) incurred by it in connection with the administration of this trust and the
performance of its duties or in connection with the exercise or performance of any of its rights or
powers hereunder. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder, except to the extent that such delay increases the liability
of the Company or a Guarantor. The Company shall defend the claim and the Trustee shall
provide reasonable cooperation in such defense. The Trustee may have separate counsel of its
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selection and the Company shall pay the documented and reasonable fees and expenses of such
counsel reasonably acceptable to the Company; provided, however, that the Company shall not
be required to pay such fees and expenses if the Company assumes such defense unless there is a
conflict of interest between the Company and the Trustee in connection with such defense as
determined by Trustee in consultation with counsel. Notwithstanding the foregoing, the
Company need not reimburse any expense or indemnify against any loss, liability, damage, claim
or expense incurred by the Trustee through the Trustee’s own bad faith, willful misconduct or
negligence.
(b) To secure the Company’s payment obligations of the Company and the
Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, in its capacity as Trustee, other than money or property
held in trust to pay principal of and interest, if any, on particular Notes.
(c) The Company’s payment obligations pursuant to this Section 7.07 shall
survive the resignation or removal of the Trustee and the discharge of this Indenture. When the
Trustee incurs expenses after the occurrence of an Event of Default specified in
Section 6.01(a)(7) or (8) with respect to the Company, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a) The Trustee may resign at any time by giving 30 days’ prior notice of such
resignation to the Company and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in aggregate principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or public officer takes charge of the Trustee or its property; or
(4) Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or has been removed by the Holders, Holders of a
majority in principal amount of the outstanding Notes may appoint a successor Trustee.
Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the
then outstanding Notes may remove the successor Trustee to replace it with another successor
Trustee appointed by the Company.
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(c) A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its
succession to Holders, and include in the notice its name and address of its Corporate Trust
Office. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10%
in principal amount of the Notes may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder of Notes may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee with respect to the Notes.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
Section 7.09 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any further act shall, if
such resulting, surviving or transferee corporation or banking association is otherwise eligible
under this Indenture, be the successor Trustee.
(b) In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any successor to the
Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which the Notes provide or this Indenture provides that the certificate of the Trustee shall
have.
Section 7.10 Eligibility; Disqualification.
The Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition. Neither the
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Company, a Guarantor nor any person directly or indirectly controlling, controlled by, or under
common control with the Company or a Guarantor may serve as Trustee.
Section 7.11 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Trust Indenture Act Section 311(a) (whether or not
applicable by law), excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) (whether or not applicable by law) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Legal Defeasance.
(a) Subject to the satisfaction of the conditions set forth in Section 8.03, the
Company may elect, at its option, to have its obligations discharged with respect to the
outstanding Notes (“Legal Defeasance”).
(b) For this purpose, Legal Defeasance means that the Company will be
deemed to have paid and discharged the entire indebtedness represented by the outstanding
Notes which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.04
and the other Sections of this Indenture referred to in (1), (2), (4) and (5) below, and to have
satisfied all of its other obligations under such Notes and this Indenture, including that of the
Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Notes to receive payments in respect of the
principal of and any premium and interest on such Notes when payments are due;
(2) the Company’s obligations with respect to such Notes concerning issuing
temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments held in
trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee;
(4) the Company’s right of optional redemption pursuant to Section 3.07; and
(5) this Section 8.01.
(c) Following the Company’s exercise of its Legal Defeasance option,
payment of the Notes may not be accelerated because of an Event of Default.
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(d) Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.01 notwithstanding the prior exercise of its option under
Section 8.02.
Section 8.02 Covenant Defeasance.
(a) Subject to the satisfaction of the conditions set forth in Section 8.03, the
Company may elect, at its option, to be released from its obligations under the covenants
contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17 and 4.19 and
clause (4) of Section 5.01(a), including, without limitation, its obligation to make Offers to
Purchase in connection with Asset Sales and any Change of Control and any omission to comply
with such obligation shall not constitute a Default or an Event of Default with respect to the
Notes, and the Guarantors shall be deemed to have been discharged from their obligations with
respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.03 are
satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such Notes shall not be
deemed outstanding for accounting purposes).
(b) For this purpose, Covenant Defeasance means that, with respect to this
Indenture and the outstanding Notes, the Company may omit 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 Section 6.01, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company’s exercise of the option under
this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.03, Sections
6.01(a)(3), 6.01(a)(4) (only with respect to the failure of the Company to comply with clause (3)
of Section 5.01(a) and with respect to covenants that are released as a result of such Covenant
Defeasance), 6.01(a)(5), 6.01(a)(6), 6.01(a)(7) (solely with respect to Significant Subsidiaries or
a group of Restricted Subsidiaries of the Company that, taken together would constitute a
Significant Subsidiary), and 6.01(a)(8) (solely with respect to Significant Subsidiaries or a group
of Restricted Subsidiaries of the Company that, taken together would constitute a Significant
Subsidiary), in each case, shall not constitute Events of Default.
Section 8.03 Conditions to Legal or Covenant Defeasance.
(a) In order to exercise either Legal Defeasance or Covenant Defeasance with
respect to outstanding Notes, as provided for in this Article 8:
(1) the Company must irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to the benefits of the Holders of
such Notes: (A) money in an amount, or (B) U.S. Government Obligations, which
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through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any payment, money in an
amount or (C) a combination thereof, in each case sufficient without reinvestment, in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of
the principal of and premium, if any, and interest on such Notes on the Stated Maturity
thereof or (if the Company has made irrevocable arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name and at the expense of
the Company) the redemption date thereof, as the case may be, in accordance with the
terms of this Indenture and such Notes;
(2) in the case of Legal Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date,
there has been a change in the applicable United States federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of such Notes will not recognize gain or loss for United States
federal income tax purposes as a result of the deposit, defeasance and discharge to be
effected with respect to such Notes and will be subject to United States federal income
tax on the same amount, in the same manner and at the same times as would be the case if
such deposit, defeasance and discharge were not to occur;
(3) in the case of Covenant Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding
Notes will not recognize gain or loss for United States federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to such Notes
and will be subject to United States federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and covenant
defeasance were not to occur;
(4) the Company shall have delivered to the Trustee a ruling received from the
Canada Revenue Agency or an Opinion of Counsel reasonably acceptable to the Trustee
and qualified to practice law in Canada, in each case to the effect that Holders and
beneficial owners of the outstanding Notes will not recognize income, gain or loss for
applicable Canadian federal, provincial or territorial income tax or other tax purposes as a
result of such Legal Defeasance or Covenant Defeasance, as applicable, and will only be
subject to applicable Canadian federal, provincial and territorial income tax and other
taxes on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance or Covenant Defeasance, as applicable, had not
occurred;
(5) no Default or Event of Default with respect to the outstanding Notes shall
have occurred and be continuing at the time of such deposit after giving effect thereto
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(other than a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit and the grant of any Lien to secure such borrowing);
(6) in the event that this Indenture is qualified under the Trust Indenture Act,
such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are
in default within the meaning of such Act);
(7) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or material
instrument (other than the Indenture) to which the Company is a party or by which the
Company is bound; and
(8) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent with respect to such
Legal Defeasance or Covenant Defeasance have been complied with.
Section 8.04 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
(a) Subject to Section 8.05, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 8.03 in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company or a Guarantor acting as Paying Agent) as the Trustee
may determine, to the Holders of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, if any, on the Notes, but such money need not be segregated from
other funds except to the extent required by law.
(b) Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the Company any
money or U.S. Government Obligations held by it as provided in Section 8.03 which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.03(a)), are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.05 Repayment to the Company.
Subject to any applicable abandoned property law, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the
principal, premium, if any, or interest on any Note and remaining unclaimed for two years after
such principal, premium, if any, or interest, if any, has become due and payable shall be paid to
the Company on its request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter look only to the Company for payment thereof, and
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all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
Section 8.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or U.S.
Government Obligations in accordance with Section 8.01 or Section 8.02, as the case may be, by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations
under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.01 or Section 8.02 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.01 or
Section 8.02, as the case may be; provided that, if the Company makes any payment of principal,
premium, if any, or interest, if any, on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
(a) Notwithstanding Section 9.02, without the consent of any Holder, the
Company, the Guarantors and the Trustee, at any time and from time to time, may enter into one
or more indentures supplemental to this Indenture for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such Successor Entity of the covenants of the Company in this
Indenture, the Note Guarantees and the Notes in accordance with the terms of this
Indenture;
(2) to add to the covenants of the Company for the benefit of the Holders, or
to surrender any right or power herein conferred upon the Company;
(3) to add additional Events of Default;
(4) to provide for certificated Notes in addition to or in place of the
uncertificated Notes;
(5) to evidence and provide for the acceptance of appointment under this
Indenture by a successor Trustee;
(6) to provide for or confirm the issuance of Additional Notes in accordance
with the terms of this Indenture;
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(7) to add a Guarantor or to release a Guarantor in accordance with the terms
of this Indenture;
(8) to cure any ambiguity, defect, omission, mistake or inconsistency;
(9) to make any other provisions with respect to matters or questions arising
under this Indenture; provided that such actions pursuant to this clause (9) shall not
adversely affect the interests of the Holders in any material respect, as determined in
good faith by the Board of Directors of the Company and as conclusively evidenced by
an Officer’s Certificate delivered to the Trustee;
(10) to conform the text of this Indenture or the Notes to any provision of the
“Description of Notes” section of the Offering Memorandum to the extent that the
Trustee has received an Officer’s Certificate stating that such text constitutes an
unintended conflict with the description of the corresponding provision in the
“Description of Notes” section of the Offering Memorandum;
(11) to effect or maintain the qualification of this Indenture under the Trust
Indenture Act;
(12) to secure the Notes;
(13) to provide for the issuance of exchange securities which shall have terms
substantially identical in all respects to the Notes (except that the transfer restrictions
contained in the Notes shall be modified or eliminated as appropriate) and which shall be
treated, together with any outstanding Notes, as a single class of securities.
(b) Upon the request of the Company, and upon receipt by the Trustee of the
documents described in Section 12.03, the Trustee shall join with the Company and the
Guarantors in the execution of any amended or supplemental indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into such amended
or supplemental indenture that affects its own rights, duties or immunities under this Indenture or
otherwise.
(c) After an amendment, supplement or waiver under this Section 9.01
becomes effective, the Company shall send to the Holders of Notes affected thereby a written
notice briefly describing the amendment, supplement or waiver. Any failure of the Company to
send such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
Section 9.02 With Consent of Holders.
(a) With the consent of the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), the Company, the Guarantors and the
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Trustee may enter into an indenture or indentures supplemental to this Indenture for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Notes or of modifying in any manner the rights of the Holders of the Notes
under this Indenture, including the definitions therein; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each outstanding Note
affected thereby:
(1) change the Stated Maturity of any Note or of any installment of interest on
any Note, or reduce the amount payable in respect of the principal thereof or the rate of
interest thereon or any premium payable thereon, or reduce the amount that would be due
and payable on acceleration of the maturity thereof, or change the place of payment
where, or the coin or currency in which, any Note or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof, or change the date on which any Notes may be
subject to redemption or reduce the Redemption Price therefor;
(2) reduce the percentage in aggregate principal amount of the outstanding
Notes, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) modify the obligations of the Company to make Offers to Purchase upon a
Change of Control or from the Excess Proceeds of Asset Sales if such modification is
made after the time that the Company is required to make an Offer to Purchase in
connection with a Change of Control or Asset Sale;
(4) modify or change any provision of this Indenture affecting the ranking of
the Notes or any Note Guarantee in a manner adverse to the Holders of the Notes;
(5) modify any of the provisions of this Section 9.02(a) or provisions relating
to waiver of Defaults or covenants, except to increase any percentage required for such
actions or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Note affected thereby; or
(6) release any Note Guarantees required to be maintained under this
Indenture (other than in accordance with the terms of this Indenture).
(b) Section 2.08 and Section 2.09 shall determine which Notes are considered
to be “outstanding” for the purposes of this Section 9.02.
(c) Upon the request of the Company, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 and Section 12.03, the Trustee shall
join with the Company and the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties
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or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental indenture.
(d) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.
It shall be sufficient if such consent approves the substance thereof.
(e) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall send to the Holders of Notes affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to send
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.
(f) A consent to any amendment, supplement or waiver of this Indenture, the
Notes or any Note Guarantee by any Holder given in connection with a tender of such Holder’s
Notes shall not be rendered invalid by such tender.
Section 9.03 Record Dates for Consents.
The Company may, but shall not be obligated to, fix a record date pursuant to
Section 1.04 for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver.
Section 9.04 Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.05 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant
to this Article 9 if the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. In executing any amendment, supplement or
waiver, the Trustee shall receive and (subject to Section 7.01) shall be fully protected in
conclusively relying upon, in addition to the documents required by Section 12.03, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Company and any
Guarantor party thereto, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof.
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ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly and
severally, irrevocably and unconditionally guarantees, on a senior unsecured basis, to each
Holder and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (1) the principal, premium, if any, and interest, if any, on the Notes shall be
promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and
all other Obligations of the Company to the Holders or the Trustee hereunder or under the Notes
shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and (2) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment by the Company when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the
same immediately. The Company hereby fully and unconditionally guarantees the Guarantee of
each Guarantor on an unsecured, unsubordinated basis. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee
shall not be discharged except by complete performance of the obligations contained in the Notes
and this Indenture, or pursuant to Section 10.06.
(c) Each of the Guarantors also agrees, jointly and severally, to pay any and
all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 10.01.
(d) If any Holder or the Trustee is required by any court or otherwise to return
to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
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(e) Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as
between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event
of any declaration of acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantees.
(f) Each Note Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any significant part of the
Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by
any obligee on the Notes or the Note Guarantees, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g) In case any provision of any Note Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(h) Each payment to be made by a Guarantor in respect of its Note Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms
that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute
a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal,
Canadian, provincial or state law to the extent applicable to any Note Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws and after giving effect to any collections from, rights
to receive contribution from or payments made by or on behalf of any other Guarantor in respect
of the obligations of such other Guarantor under this Article 10, result in the obligations of such
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Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee
shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a
contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of
such payment determined in accordance with IFRS. The obligations of each Guarantor are
subject to the limitations set forth in Section 4.15.
Section 10.03 Execution and Delivery.
(a) To evidence its Note Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Authorized
Officer or person holding an equivalent title.
(b) Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Note Guarantee on the Notes.
(c) If an Authorized Officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates any Note, the Note Guarantees shall be
valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on
behalf of the Guarantors.
(e) If required by Section 4.15, the Company shall cause any newly created or
acquired Restricted Subsidiary to comply with the provisions of Section 4.15 and this Article 10,
to the extent applicable.
Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company
in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01;
provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Company under this Indenture or the
Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the guarantee and waivers
made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
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Section 10.06 Release of Note Guarantees.
(a) A Note Guarantee by a Guarantor shall be automatically and
unconditionally released and discharged, and no further action by such Guarantor, the Company
or the Trustee shall be required for the release of such Guarantor’s Note Guarantee, upon:
(1) (A) a sale or other transfer or disposition (including by way of merger,
consolidation, arrangement or amalgamation) of all of the Capital Interests in any
Guarantor to any Person that is not an Affiliate of the Company in compliance with the
terms of this Indenture;
(B) the sale or other transfer of all or substantially all the assets of a
Guarantor (including by way of merger, consolidation, arrangement or
amalgamation) to a Person that is not an Affiliate of the Company in compliance
with the terms of this Indenture;
(C) the merger, consolidation or amalgamation of any Guarantor with
and into the Company, another Guarantor or a Person that will become a
Guarantor substantially upon the consummation of such merger, consolidation or
amalgamation;
(D) the release of a Guarantor of all of its Guarantee obligations in
respect of the Credit Facilities (other than pursuant the Notes or this Indenture);
(E) the proper designation of any Guarantor as an Unrestricted
Subsidiary;
(F) the occurrence of any other transaction permissible under this
Indenture pursuant to which such Guarantor ceases to be a Subsidiary;
(G) the election of the Company to have its obligations satisfied and
discharged with respect to any outstanding Notes in accordance with the terms of
this Indenture; or
(H) the Company’s exercise of its Legal Defeasance option or
Covenant Defeasance option in accordance with Article 8 or the discharge of the
Company’s obligations under this Indenture in accordance with the terms of this
Indenture; and
(2) such Guarantor delivering to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction and/or release have been complied with.
(b) At the written request of the Company, the Company, such Guarantor and
the Trustee shall execute and deliver any documents reasonably required in order to evidence
such release, discharge and termination in respect of the applicable Note Guarantee.
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ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a) The Company and the Guarantors may terminate their respective
obligations under the Indenture, and this Indenture will cease to be of further effect as to all
Notes, (a “Discharge”) when:
(1) either: (A) all Notes that have been authenticated and delivered
have been delivered to the Trustee for cancellation, or (B) all such Notes not theretofore
delivered to the Trustee for cancellation (i) have become due and payable or (ii) will
become due and payable within one year or are to be called for redemption within one
year under irrevocable arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and the
Company has irrevocably deposited or caused to be deposited with the Trustee
immediately available funds or U.S. Government Obligations in an amount sufficient to
pay and discharge the entire indebtedness on the Notes, not theretofore delivered to the
Trustee for cancellation, for principal of, premium, if any, and interest, if any, to the
Stated Maturity or redemption date;
(2) the Company has paid or caused to be paid all other sums then due
and payable under this Indenture by the Company;
(3) the deposit will not result in a breach or violation of, or constitute a
default under, any other material instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound;
(4) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the Notes at
maturity or on the redemption date, as the case may be; and
(5) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent under this Indenture
relating to the Discharge have been complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, if money
shall have been deposited with the Trustee pursuant to this Section 11.01, the provisions of
Section 11.02 and Section 8.05 shall survive.
Section 11.02 Application of Trust Money.
(a) Subject to the provisions of Section 8.05, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or a Guarantor acting as Paying Agent) as the Trustee may
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determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any,
for whose payment such money has been deposited with the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
(b) If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under
this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.01; provided that if the Company has made any
payment of principal, premium, if any, or interest, if any, on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent, as the case may be.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Notices.
(a) Any notice or communication to the Company, any Guarantor or the
Trustee is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail
(certified or registered, return receipt requested), postage prepaid, or overnight air courier
guaranteeing next day delivery or (3) sent by facsimile or electronic transmission, to its address:
if to the Company or any Guarantor:
Concordia Healthcare Corp.
000 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx, Chief Executive Officer
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Facsimile: 000-000-0000
Attention: Xxxx Xxxxx
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if to the Trustee:
U.S. Bank National Association
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx of America
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Global Corporate Trust Services
The Company, any Guarantor or the Trustee, by like notice, may designate additional or different
addresses for subsequent notices or communications.
(b) All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given, whether personally delivered, sent by facsimile or electronic
transmission (in PDF format), or mailed by first-class mail to the address above in
Section 12.01(a), shall be deemed duly given, regardless of whether the addressee receives such
notice or communication; provided that any notice or communication delivered to the Trustee
shall be deemed effective upon actual receipt thereof.
(c) Any notice or communication to a Holder shall be mailed by first-class
mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing
next day delivery to its address shown on the Note Register or by such other delivery system as
the Trustee agrees to accept and shall be deemed to be sufficiently given if so sent within the
time prescribed. Failure to send a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
(d) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
(e) Where this Indenture provides for notice of any event (including any
notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice
shall be sufficiently given if given to the Depositary for such Note (or its designee), pursuant to
the applicable procedures of such Depositary, if any, prescribed for the giving of such notice.
(f) The Trustee agrees to accept and act upon notice, instructions or directions
pursuant to this Indenture sent by unsecured facsimile or electronic transmission (in PDF
format); provided, however, that (1) the party providing such written notice, instructions or
directions, subsequent to such transmission of written instructions, shall provide the originally
executed instructions or directions to the Trustee in a timely manner, and (2) such originally
executed notice, instructions or directions shall be signed by an authorized representative of the
party providing such notice, instructions or directions. The Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance in good faith
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upon and compliance with such notice, instructions or directions notwithstanding such notice,
instructions or directions conflict or are inconsistent with a subsequent notice, instructions or
directions.
(g) If the Company sends a notice or communication to Holders, it shall send
a copy to the Trustee and each Agent at the same time pursuant to Section 12.01(b).
Section 12.02 Communication by Holders with Other Holders.
Holders may communicate with other Holders with respect to their rights under
this Indenture or the Notes.
Section 12.03 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the Trustee
to take any action under this Indenture, the Company or such Guarantor, as the case may be,
shall furnish to the Trustee:
(1) an Officer’s Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 12.04)
stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 12.04)
stating that, in the opinion of such counsel, all such conditions precedent and covenants
have been complied with.
Section 12.04 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided pursuant to
Section 4.04) shall include:
(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
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been complied with
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(and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s
Certificate as to matters of fact); and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 12.05 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
Section 12.06 No Personal Liability of Directors, Officers, Employees,
Members, Partners and Shareholders.
No director, officer, employee, stockholder, general or limited partner or
incorporator, past, present or future, of the Company or any of its Subsidiaries, as such or in such
capacity, shall have any personal liability for any obligations of the Company under the Notes,
any Note Guarantee or this Indenture by reason of his, her or its status as such director, officer,
employee, stockholder, general or limited partner or incorporator.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the Notes.
Section 12.07 Governing Law.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
Section 12.08 Waiver of Jury Trial.
EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES,
THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Restricted Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its successors and assigns.
All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise
provided in Section 10.06.
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. The exchange of
copies of this Indenture and of signature pages by facsimile or .pdf transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the parties hereto transmitted by
facsimile or .pdf shall be deemed to be their original signatures for all purposes.
Section 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 12.14 U.S.A. PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.
PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee.
The parties to this Indenture agree that they shall provide the Trustee with such information as it
may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 12.15 Payments Due on Non-Business Days.
In any case where any Interest Payment Date, redemption date or repurchase date
or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest, if
any, on the Notes need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment Date,
redemption date or repurchase date, or at the Stated Maturity of the Notes; provided that no
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interest will accrue for the period from and after such Interest Payment Date, redemption date,
repurchase date or Stated Maturity, as the case may be.
Section 12.16 Submission to Jurisdiction.
The Company and each Guarantor not organized in the United States shall appoint
CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (or a permitted alternative)
as its agent for service of process in any suit, action or proceeding with respect to this Indenture,
the Notes and the Note Guarantees and for actions brought under the U.S. federal or state
securities laws brought in any U.S. federal or state court located in the Borough of Manhattan in
the County and City of New York. The Company and each Guarantor irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the state and federal courts sitting in
the Borough of Manhattan in the County and City of New York over any suit, action or
proceeding arising out of or relating to this Indenture, the Notes or the Note Guarantees and for
actions brought under the U.S. federal or state securities laws. Service of any process, summons,
notice or document by registered mail addressed to the Company or any Guarantor at the address
above in Section 12.01 shall be effective service of process against the Company or any
Guarantor for any suit, action or proceeding brought in any such court. The Company and each
Guarantor irrevocably and unconditionally waives any objection to the laying of venue of any
such suit, action or proceeding brought in any such court and any claim that any such suit, action
or proceeding has been brought in an inconvenient forum. A final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding upon the
Company and each Guarantor and may be enforced in any other courts to whose jurisdiction the
Company is or may be subject, by suit upon judgment. The Company and each Guarantor
further agrees that nothing herein shall affect any Holder’s right to effect service of process in
any other manner permitted by law or bring a suit action or proceeding (including a proceeding
for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable
law.
Section 12.17 Waiver of Immunity.
To the extent that each of the Company and the Guarantors, or any of their
respective properties, assets or revenues may have or may hereafter become entitled to, or have
attributed to each of the Company and the Guarantors, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief
in any such legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of
any Canadian, New York state or U.S. federal court, from service of process, from attachment
upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of
judgment, or other legal process or proceeding for the giving of any relief or for the enforcement
of any judgment, in any such court in which proceedings may at any time be commenced, with
respect to the obligations and liabilities of each of the Company and the Guarantors or any other
matter under or arising out of or in connection with this Indenture, each of the Company and the
Guarantors hereby irrevocably and unconditionally waives or will waive such right to the extent
permitted by applicable law, and agree not to plead or claim, any such immunity and consent to
such relief and enforcement.
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Section 12.18 Conversion of Currency.
If for the purposes of obtaining judgment in any court it is necessary to convert a
sum due under this Indenture to the Holder from U.S. dollars to another currency, the Company
and each Subsidiary Guarantor has agreed, and each Holder by holding such Note will be
deemed to have agreed, to the fullest extent that the Company, each Subsidiary Guarantor and
they may effectively do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures such Holder could purchase U.S. dollars with such other
currency in New York City, New York on the Business Day preceding the day on which final
judgment is given.
The Company’s and Subsidiary Guarantors’ obligations to any Holder will,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than U.S. dollars,
be discharged only to the extent that on the Business Day following receipt by such Holder or the
Trustee, as the case may be, of any amount in such Judgment Currency, such Holder may in
accordance with normal banking procedures purchase U.S. dollars with the Judgment Currency.
If the amount of the U.S. dollars so purchased is less than the amount originally to be paid to
such Holder or the Trustee in the Judgment Currency (as determined in the manner set forth in
the preceding paragraph), as the case may be, each of the Company and the Subsidiary
Guarantors, jointly and severally, agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Holder and the Trustee, as the case may be, against any such loss. If
the amount of the U.S. dollars so purchased is more than the amount originally to be paid to such
Holder or the Trustee, as the case may be, such Holder or the Trustee, as the case may be, will
pay the Company and the Subsidiary Guarantors, such excess; provided that such Holder or the
Trustee, as the case may be, shall not have any obligation to pay any such excess if the Company
or the Subsidiary Guarantors shall have failed to pay any Holder or the Trustee any amounts then
due and payable under such Note or this Indenture, in which case such excess shall be applied by
such Holder or the Trustee to satisfy (to the extent thereof) such Obligations.
Section 12.19 Accounting Provisions.
Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with IFRS, as in effect from time to time;
provided that, in the event that any Accounting Change occurs and such change results in a
change in the method of calculation of financial covenants, standards or terms, as determined in
good faith by the Company, then, upon the written notice of the Company to the Trustee, such
financial covenants, standards or terms shall be calculated on the same basis as calculated prior
to giving effect to such Accounting Change and as if such Accounting Change had not occurred.
Any such election with respect to such Accounting Change may not thereafter be changed.
Notwithstanding anything to the contrary above or in the definition of Capital
Lease Obligations, in the event of a change under IFRS (or the application thereof) requiring all
leases to be capitalized, only those leases that would result or would have resulted in Capital
Lease Obligations on the Issue Date (assuming for purposes hereof that they were in existence on
the Issue Date) shall be considered Capital Lease Obligations and all calculations and
deliverables under the Indenture shall be made in accordance therewith.
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[Signatures on following page]
![Page 141](https://www.sec.gov/Archives/edgar/data/1642271/000164227118000008/exhibit22covisnoteindent141.jpg)
CONCORDIA HEAL THCARE INC., as a
Guarantor
CONCORDIA LABS IN s a Guarantor
By:
PINNACLE BIOLOGIC
By:
Name:
Title:
[Concordia- Signature Page to the Indenture]
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CONCORDIA HEAL THCARE (USA) INC .• as a
Guarantor
By:
Name: ~4\(t ~~~~~\
Title: ~\c.~~(
COMPLETE MEDICAL HOMECARE, INC., as a
Guarantor
By:
Name: (..,t./A7flc:= /C.t-E:PP.r?e-i!.
Title: Pf-ES 1 "XXX\ .,.
[Concordia - Signature Page to the Indenture]
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CONCORDIA PHARMACEUTICALS INC., as a
Guarantor A:~
By: ~
Name: ~ 6. ~<eAI{tJ..
Title: QJ\ru..bw
CONCORDIA LABORATORIES INC., as a
Guarantor
By: Nrune:£1;~
Title: OliruD-w
[Concordia- Signature Page to the Indenture]
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U.S. BANK NATIONAL ASSOCIATION, as
By:
Title: Assistant Vice President
[Concordia - Signature Page to the Indenture]
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EXHIBIT A
[FORM OF FACE OF NOTE]
[Insert the Private Placement Legend, if applicable, pursuant to the provisions of
the Indenture]
[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the
Indenture]
[Insert the Canadian Restricted Legend, if applicable, pursuant to the provisions
of the Indenture]
[Insert the Regulation S Temporary Global Legend, if applicable, pursuant to the
provisions of the Indenture]
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CUSIP [ ]
ISIN [ ]1
[RULE 144A] [REGULATION S] [GLOBAL] NOTE
7.000% Senior Notes due 2023
No. [A-__] [S-__] [$______________]
CONCORDIA HEALTHCARE CORP.
promises to pay to [CEDE & CO.]2 [ ] or registered assigns the principal sum
[$ ( Dollars), as revised by the Schedule of Exchanges of Interests in the Global Note
attached hereto]3 [of $ ( Dollars)]4 on April 15, 2023.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2015
Record Dates: April 1 and October 1
1 Rule 144A Note CUSIP: 206519 AA8
Rule 144A Note ISIN: US206519AA88
Regulation S Note CUSIP: C26215 AA8
Regulation S Note ISIN: USC26215AA88
2 Include in Global Notes
3 Include in Global Notes
4 Include in Definitive Notes
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IN WITNESS HEREOF, the Company has caused this instrument to be duly
executed.
CONCORDIA HEALTHCARE CORP.
By:
Name:
Title:
Dated: [_______________] [__], [__]
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
Authorized Signatory
Dated: [_______________] [__], [__]
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[Reverse Side of Note]
7.000% Senior Notes due 2023
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. INTEREST. Concordia Healthcare Corp., a corporation existing under the
laws of the Province of Ontario (the “Company”), promises to pay interest on the principal
amount of this Note at 7.000% per annum from and including April 21, 2015 until but excluding
maturity. The Company shall pay interest if any, semi-annually in arrears on April 15 and
October 15 of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from and
including the date of original issuance; provided that the first Interest Payment Date shall be
October 15, 2015. The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at the interest rate on the Notes; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any,
(without regard to any applicable grace periods) from time to time on demand at the interest rate
on the Notes. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-
day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
to the Persons who are registered holders of Notes at the close of business on the April 1 or
October 1 (whether or not a Business Day), as the case may be, immediately preceding the
related Interest Payment Date, even if such Notes are canceled after such Record Date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. Principal, premium, if any, and interest, if any, on the Notes shall
be payable at the office or agency of the Company maintained for such purpose; provided that
payment by wire transfer of immediately available funds shall be required with respect to
principal, premium, if any, and interest, if any, on all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company or the Paying
Agent at least five Business Days prior to the applicable payment date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National
Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to the Holders. The
Company or any Affiliate incorporated or organized within the United States of America may act
as Paying Agent (except for purposes of Section 8) or Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture, dated
as of April 21, 2015 (the “Indenture”), among Concordia Healthcare Corp., the Guarantors
named therein and the Trustee. This Note is one of a duly authorized issue of notes of the
Company designated as its 7.000% Senior Notes due 2023. The Company shall be entitled to
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issue Additional Notes pursuant to Section 2.01 and 4.09 of the Indenture. The Notes and any
Additional Notes issued under the Indenture shall be treated as a single class of securities under
the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are
subject to all such terms, and Holders are referred to the Indenture for a statement of such terms.
Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it
in the Indenture. To the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
5. REDEMPTION AND REPURCHASE. The Notes are subject to optional
redemption, and may be the subject of an Offer to Purchase, as further described in the
Indenture. The Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
6. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and Holders shall be
required to pay any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part.
7. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
8. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the
Note Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
9. DEFAULTS AND REMEDIES. The Events of Default relating to the
Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default,
the rights and obligations of the Company, the Guarantors, the Trustee and the Holders shall be
as set forth in the applicable provisions of the Indenture.
10. AUTHENTICATION. This Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose until authenticated by the manual
signature of the Trustee.
11. GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. CUSIP AND ISIN NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP and
ISIN numbers in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.
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The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to the Company at the following address:
Concordia Healthcare Corp.
000 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx, Chief Executive Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have
purchased:
$__________ (integral multiples of $1,000 provided that the
unpurchased portion must be in a minimum
principal amount of $2,000)
Date: _______________
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
Signature Guarantee*: __________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The
following exchanges of a part of this Global Note for an interest in another Global Note or for a
Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this
Global Note, have been made:
Date of Exchange
Amount of
decrease in
Principal Amount
Amount of
increase in
Principal Amount
of this Global Note
Principal Amount
of this Global Note
following such
decrease or
increase
Signature of
authorized
signatory of
Trustee or
Custodian
___________________
*This schedule should be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Concordia Healthcare Corp.
000 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx, Chief Executive Officer
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 7.000% Senior Notes due 2023
Reference is hereby made to the Indenture, dated as of April 21, 2015 (the
“Indenture”), among Concordia Healthcare Corp. (the “Company”), the Guarantors named
therein and the 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 Note[s] or
interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in
such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE 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 that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably believes is
purchasing the beneficial interest or Definitive 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 Definitive Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE, THE
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REGULATION S PERMANENT GLOBAL NOTE OR A DEFINITIVE 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, accordingly, 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 reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction 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 requirements 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 Definitive Note will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the Regulation S Temporary
Global Note, the Regulation S Permanent Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE
DELIVERY OF A BENEFICIAL INTEREST IN A GLOBAL NOTE OR A DEFINITIVE
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
Definitive 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 Issuers or a subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
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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
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee and (2) if such Transfer is in
respect of a principal amount of Notes at the time of Transfer of less than $100,000, 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
Definitive Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the
Securities Act.
4. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN
UNRESTRICTED DEFINITIVE NOTE.
(a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 to a Person who is not an
affiliate (as defined in Rule 144) of the Issuers 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 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 Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive 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 Securities Act to a Person who is not an affiliate (as defined in Rule 144) of the Issuers 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 Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive 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
registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 to a
Person who is not an affiliate (as defined in Rule 144) of the Issuers 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 Transfer in accordance with the terms of the
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Indenture, the transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.
5. CHECK IF TRANSFEROR IS AN AFFILIATE OF THE ISSUERS.
6. CHECK IF TRANSFEREE IS AN AFFILIATE OF THE ISSUERS.
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This certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP [ ]), or
(ii) Regulation S Global Note (CUSIP [ ]), or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP [ ]), or
(ii) Regulation S Global Note (CUSIP [ ]), or
(iii) Unrestricted Global Note (CUSIP [ ]), or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Concordia Healthcare Corp.
000 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx, Chief Executive Officer
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 7.000% Senior Notes due 2023
Reference is hereby made to the Indenture, dated as of April 21, 2015 (the
“Indenture”), among Concordia Healthcare Corp., the Guarantors named therein and the 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 Note[s] or
interest in such Note[s] specified herein, in the principal amount of $__________ in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED
DEFINITIVE 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 interest in an Unrestricted
Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the “Securities Act”), (iii) 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, (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state of the
United States and (v) the Owner is not an affiliate (as defined in Rule 144) of the
Company.
b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In
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connection with the Exchange of the Owner’s beneficial interest in a Restricted Global
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii) 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, (iv) the Definitive
Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States and (v) the Owner is not an affiliate (as defined in Rule 144) of
the Company.
c) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial
interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) 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, (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States and (v) the Owner is not an affiliate (as defined in
Rule 144) of the Company.
d) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) 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, (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state of the
United States and (v) the Owner is not an affiliate (as defined in Rule 144) of the
Company.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED
DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted Global
Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner’s own
account without transfer. Upon consummation of the proposed Exchange in accordance
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with the terms of the Indenture, the Restricted Definitive Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note, with
an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture,
the beneficial interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
3) CHECK IF OWNER IS AN AFFILIATE OF THE COMPANY.
4) CHECK IF OWNER IS EXCHANGING THIS NOTE IN
CONNECTION WITH AN EXPECTED TRANSFER TO AN AFFILIATE OF THE
COMPANY.
This certificate and the statements contained herein are made for your benefit and
the benefit of the Company and are dated ______________________.
[Insert Name of Transferor]
By:
Name:
Title:
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EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this “Supplemental Indenture”), dated as of [ ] [ ],
20[ ], among (the “Guaranteeing Subsidiary”), a subsidiary of Concordia Healthcare Corp., a
corporation existing under the laws of the Province of Ontario (the “Company”), and U.S. Bank
National Association, a national banking association, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, each of the Company and the Guarantors (as defined in the Indenture
referred to below) has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of April 21, 2015, providing for the issuance of an unlimited aggregate
principal amount of 7.000% Senior Notes due 2023 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the
Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth
herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized
to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Guarantor. The Guaranteeing Subsidiary hereby agrees to be a Guarantor
under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors,
including Article 10 thereof.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
4. Waiver of Jury Trial. EACH OF THE GUARANTEEING SUBSIDIARY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE
GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. The exchange of copies of this Supplemental Indenture and of
signature pages by facsimile or .pdf transmission shall constitute effective execution and delivery
of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or .pdf shall
be deemed to be their original signatures for all purposes.
6. Headings. The headings of the Sections of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a part of this
Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
7. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
[NAME OF GUARANTEEING SUBSIDIARY]
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
Name:
Title: