Exhibit 4.1
Execution Version
PHINIA INC.,
as Issuer
and
the Guarantors from time to time parties hereto
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
DATED AS OF SEPTEMBER 17, 2024
6.625% Senior Notes due 2032
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 101.
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Definitions.
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1
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Section 102.
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Other Definitions.
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35
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Section 103.
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Rules of Construction
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36
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Section 104.
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[Reserved].
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36
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Section 105.
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[Reserved].
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36
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Section 106.
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Compliance Certificates and Opinions
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36
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Section 107.
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Form of Documents Delivered to Trustee
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37
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Section 108.
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Acts of Noteholders; Record Dates
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37
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Section 109.
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Notices, Etc., to Trustee and Company
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39
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Section 110.
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Notices to Holders; Waiver
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40
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Section 111.
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Effect of Headings and Table of Contents
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40
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Section 112.
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Successors and Assigns
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40
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Section 113.
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Separability Clause
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40
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Section 114.
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Benefits of Indenture
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40
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Section 115.
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Governing Law; Jurisdiction
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40
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Section 116.
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Waiver of Trial by Jury
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41
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Section 117.
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Legal Holidays
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41
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Section 118.
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No Personal Liability of Directors, Managers, Officers, Employees, Incorporators and Stockholders
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41
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Section 119.
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Exhibits and Schedules
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41
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Section 120.
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Counterparts
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41
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Section 121.
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Force Majeure
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42
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Section 122.
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USA PATRIOT Act
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42
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Section 123.
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Financial Calculations for Limited Condition Transactions
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42
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ARTICLE II NOTE FORMS
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43
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Section 201.
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Forms Generally
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43
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Section 202.
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Form of Trustee’s Certificate of Authentication
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44
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Section 203.
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Restrictive and Global Note Legends
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44
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ARTICLE III THE NOTES
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46
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Section 301.
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General Terms; Additional Notes
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46
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Section 302.
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Denominations
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47
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Section 303.
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Execution, Authentication and Delivery and Dating
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47
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Section 304.
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Temporary Notes
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47
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Section 305.
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Note Registrar and Paying Agent
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48
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Section 306.
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Mutilated, Destroyed, Lost and Stolen Notes
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49
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Section 307.
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Payment of Interest Rights Preserved
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49
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Section 308.
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Persons Deemed Owners
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50
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Section 309.
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Cancellation
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50
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Section 310.
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Computation of Interest
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50
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Section 311.
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CUSIP Numbers, ISINs, Etc
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50
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Section 312.
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Book-Entry Provisions for Global Notes
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50
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Section 313.
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Special Transfer Provisions.
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52
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ARTICLE IV COVENANTS
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55
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Section 401.
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Payment of Principal, Premium and Interest
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55
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Section 402.
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Maintenance of Office or Agency
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55
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Section 403.
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Money for Payments to Be Held in Trust
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55
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Section 404.
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[Reserved].
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56
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Section 405.
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Reports to Holders
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56
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Section 406.
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Statement as to Default
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57
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Section 407.
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Limitation on Incurrence of Additional Indebtedness
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57
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Section 408.
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Limitation on Designations of Unrestricted Subsidiaries
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59
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Section 409.
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Limitation on Restricted Payments
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60
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Section 410.
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Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
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65
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Section 411.
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Limitation on Asset Sales
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67
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Section 412.
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Limitation on Transactions with Affiliates
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70
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Section 413.
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Limitation on Liens
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72
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Section 414.
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Issuance of Subsidiary Guarantees
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73
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Section 415.
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Change of Control
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73
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Section 416.
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Covenant Suspension
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75
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Section 417.
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Post-Closing Covenant
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75 |
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ARTICLE V SUCCESSORS
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76
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Section 501.
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Merger, Consolidation and Sale of Assets
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76
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Section 502.
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Successor Company Substituted
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78
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ARTICLE VI REMEDIES
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78
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Section 601.
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Events of Default
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78
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Section 602.
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Acceleration of Maturity; Rescission and Annulment
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80
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Section 603.
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Other Remedies; Collection Suit by Trustee
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80
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Section 604.
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Trustee May File Proofs of Claim
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80
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Section 605.
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Trustee May Enforce Claims Without Possession of Notes
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81
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Section 606.
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Application of Money Collected
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81
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Section 607.
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Limitation on Suits
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81
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Section 608.
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[Reserved].
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82
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Section 609.
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Restoration of Rights and Remedies
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82
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Section 610.
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Rights and Remedies Cumulative
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82
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Section 611.
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Delay or Omission Not Waiver
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82
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Section 612.
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Control by Holders
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82
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Section 613.
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Waiver of Past Defaults
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83
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Section 614.
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Undertaking for Costs
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83
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Section 615.
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Waiver of Stay, Extension or Usury Laws
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83
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ARTICLE VII THE TRUSTEE
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84
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Section 701.
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Certain Duties and Responsibilities
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84
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Section 702.
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Notice of Defaults
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84
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Section 703.
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Certain Rights of Trustee
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85
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Section 704.
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Not Responsible for Recitals or Issuance of Notes
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86
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Section 705.
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May Hold Notes
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86
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Section 706.
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Money Held in Trust
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86
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Section 707.
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Compensation and Reimbursement
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86
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Section 708.
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Conflicting Interests
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87
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Section 709.
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Corporate Trustee Required; Eligibility
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87
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Section 710.
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Resignation and Removal; Appointment of Successor
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88
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Section 711.
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Acceptance of Appointment by Successor
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89
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Section 712.
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Merger, Conversion, Consolidation or Succession to Business
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89
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Section 713.
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Preferential Collection of Claims Against the Company
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89
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Section 714.
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Appointment of Authenticating Agent
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89
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ARTICLE VIII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
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90
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Section 801.
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The Company to Furnish Trustee Names and Addresses of Holders
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90
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Section 802.
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Preservation of Information; Communications to Holders
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90
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ARTICLE IX AMENDMENT, SUPPLEMENT OR WAIVER
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90
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Section 901.
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Without Consent of Holders
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90
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Section 902.
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With Consent of Holders
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91
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Section 903.
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Execution of Amendments, Supplements or Waivers
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92
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Section 904.
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Revocation and Effect of Consents
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93
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Section 905.
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[Reserved]
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93
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Section 906.
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Notation on or Exchange of Notes
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93
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ARTICLE X REDEMPTION OF NOTES
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93
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Section 1001.
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Applicability of Article
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93
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Section 1002.
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[Reserved].
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93
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Section 1003.
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Election to Redeem; Notice to Trustee
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93
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Section 1004.
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Selection by Trustee of Notes to Be Redeemed
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93
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Section 1005.
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Notice of Redemption
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94
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Section 1006.
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Deposit of Redemption Price
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95
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Section 1007.
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Notes Payable on Redemption Date
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95
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Section 1008.
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Notes Redeemed in Part
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95
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Section 1009.
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Optional Redemption
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95
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ARTICLE XI SATISFACTION AND DISCHARGE
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97
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Section 1101.
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Satisfaction and Discharge of Indenture
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97
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Section 1102.
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[Reserved]
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98
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Section 1103.
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Application of Trust Money
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98
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ARTICLE XII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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98
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Section 1201.
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The Company’s Option to Effect Legal Defeasance or Covenant Defeasance
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98
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Section 1202.
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Defeasance and Discharge
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98
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Section 1203.
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Covenant Defeasance
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99
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Section 1204.
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Conditions to Legal Defeasance or Covenant Defeasance
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99
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Section 1205.
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
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101
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Section 1206.
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Reinstatement
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101
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Section 1207.
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Repayments to the Company
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101
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ARTICLE XIII SUBSIDIARY GUARANTEES
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101
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Section 1301.
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Guarantees Generally.
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101
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Section 1302.
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Continuing Guarantees
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103
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Section 1303.
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Release of Subsidiary Guarantees
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103
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Section 1304.
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[Reserved].
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104
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Section 1305.
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Waiver of Subrogation
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104
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Section 1306.
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Notation Not Required
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104
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Section 1307.
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Successors and Assigns of Guarantors
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104
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Section 1308.
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Execution and Delivery of Subsidiary Guarantees
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104
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Section 1309.
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Notices
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104
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Exhibit A
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Form of Note
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Exhibit B
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Form of Certificate of Beneficial Ownership
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Exhibit C
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Form of Regulation S Certificate
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Exhibit D
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Form of Supplemental Indenture in Respect of Subsidiary Guarantees
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Exhibit E
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Form of Certificate from Acquiring Institutional Accredited Investors
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INDENTURE, dated as of September 17, 2024 (as amended, supplemented or otherwise modified from time to time, this “Indenture”), among PHINIA Inc., a Delaware corporation, as
issuer, the Guarantors (as defined herein) from time to time party hereto, and U.S. Bank Trust Company, National Association, as Trustee (as defined herein).
W I T N E S S E T H
WHEREAS, the Company (as defined herein) has duly authorized the creation of an issue of $450,000,000 aggregate principal amount of the Company’s 6.625% Senior Notes due 2032 (the “Initial Notes”);
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture;
NOW, THEREFORE, the Company, each Guarantor and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein):
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
“Accounts Receivable Entity” means a Person, including, without limitation, a Subsidiary of the Company, whose operations consist solely of owning and/or selling accounts
receivable of the Company and its Subsidiaries and engaging in other activities in connection with transactions that are Permitted Receivables Financings.
“Acquired Indebtedness” means Indebtedness of (A) the Company or any Restricted Subsidiary incurred to finance or refinance, or otherwise incurred in connection with, any
acquisition of any assets (including Capital Stock), business or Person, or any merger, amalgamation or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person or any of its Subsidiaries existing
at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or any of the Restricted Subsidiaries or assumed by the Company or any Restricted Subsidiary in connection with the
acquisition of assets from such Person and in each case whether or not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, merger or
consolidation.
“Additional Notes” means any additional Notes (other than the Initial Notes) issued from time to time under this Indenture in accordance with Sections 301,
303 and 407.
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is
under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative of the foregoing.
“Applicable Premium” means, at any Redemption Date, the greater of (i) 1.00% of the principal amount of such Note and (ii) the excess of (A) the present value at such Redemption Date
of (1) the redemption price of such Note on October 15, 2027 (such redemption price being that described in Section 1009) plus (2) all required remaining scheduled interest payments due on
such Note through October 15, 2027 (but excluding accrued and unpaid interest to, but not including, the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (B) the principal amount of such Note on such Redemption Date; and, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate; provided that
such calculation shall not be a duty or obligation of the Trustee.
“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 with or into the Company or any Restricted Subsidiary, or (2) the acquisition by the Company or any Restricted Subsidiary of the assets of any Person (other than a Restricted Subsidiary) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business of such Person or any other assets of such Person other than in the ordinary course of business.
“Asset Sale” means any direct or indirect sale, issuance, conveyance, lease (other than operating leases entered into in the ordinary course of business), assignment or other
transfer (other than the granting of a Lien in accordance with this Indenture) for value by the Company or any of the Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than the Company or a
Restricted Subsidiary of (a) any Capital Stock of any Restricted Subsidiary; or (b) any other property or assets of the Company or any Restricted Subsidiary other than in the ordinary course of business; provided,
however, that Asset Sales shall not include:
(1) a transaction or series of related transactions for which the Company or the Restricted Subsidiaries receive aggregate consideration of less than the greater of (a) $65.0
million and (b) 2.0% of Consolidated Net Tangible Assets;
(2) the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of the Company as permitted by Section 501;
(3) any Restricted Payment made in accordance with Section 409 or any Permitted Investment;
(4) sales or contributions of accounts receivable and related assets pursuant to a Permitted Receivables Financing made in accordance with Section 407;
(5) sales or dispositions of (i) surplus, obsolete, used, damaged or worn-out property or equipment in the ordinary course of business (whether now owned or hereafter acquired),
(ii) property no longer used or useful in the conduct of business of the Company and its Restricted Subsidiaries and (iii) property or equipment that is otherwise economically impracticable to maintain;
(6) the sale or other disposition of cash or Cash Equivalents on Investment Grade Securities;
(7) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(8) the grant in the ordinary course of business of any license of patents, trademarks, know-how, registrations therefor and other intellectual property, including, but not limited
to, grants of franchises or licenses, franchise or license master agreements and/or area development agreements;
(9) any disposition arising from foreclosure, casualty, condemnation or any similar action or transfers by reason of eminent domain, expropriation, taking, sale or other disposition
of assets (including any receipt of proceeds related thereto) by any Governmental Authority;
(10) the issuance by a Restricted Subsidiary of Preferred Stock that is permitted by Section 407;
(11) dispositions in connection with the granting of a Lien in accordance with this Indenture and the involuntary foreclosure upon any assets of the Company or any Restricted
Subsidiary pursuant to any Lien granted in accordance with this Indenture;
(12) the disposition the Capital Stock or assets of an Immaterial Domestic Subsidiary;
(13) dispositions of assets acquired as part of any acquisition that the Company or any Restricted Subsidiary disposes as part of its integration efforts relating to such
acquisition;
(14) [reserved];
(15) termination of non-speculative any Hedging Obligations;
(16) [reserved];
(17) [reserved];
(18) (i) the lease, assignment, sublease, license or sublicense of any real or personal property in the ordinary course of business and (ii) the termination of rights under any
lease, sublease, license, sublicense, concession or other agreement;
(19) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(20) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (other than an Unrestricted Subsidiary, the primary assets of which
are cash and/or Cash Equivalents or Investment Grade Securities) or any other disposition of such Unrestricted Subsidiary or any disposition of assets of such Unrestricted Subsidiary;
(21) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(22) the sale, discount or forgiveness of accounts receivable or notes receivable in the ordinary course of business or in connection with the collection or compromise thereof or the
conversion of accounts receivable to notes receivable;
(23) the abandonment of intellectual property rights in the ordinary course of business which in the reasonable good faith determination of the Company are uneconomical or not
material to the conduct of the business of the Company and the Restricted Subsidiaries taken as a whole;
(24) sales, transfers and other dispositions of Investments in Joint Ventures or any Subsidiary that is not a Wholly Owned Restricted Subsidiary to the extent required by, or made
pursuant to, customary buy/sell arrangements between the Joint Venture or similar parties set forth in the relevant Joint Venture arrangements and/or similar binding arrangements;
(25) any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions
and asset securitizations, in each case, permitted by this Indenture; and
(26) the disposition of any assets made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of
the Company to consummate any acquisition permitted under this Indenture.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 714 to act on behalf of the Trustee to authenticate Notes.
“Bankruptcy Code” means Title 11 of the United States Code, as now constituted or hereafter amended.
“Bankruptcy Law” means the Bankruptcy Code or any similar federal, state or foreign law for the relief of debtors.
“Board of Directors” means, as to any Person, the board of directors of such Person or any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the
Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City (or any
other city in which a Paying Agent maintains its office).
“Capital Markets Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the
Securities Act, (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt
securities to registration thereof with the SEC, or (c) a private placement to institutional investors. For the avoidance of doubt, the term “Capital Markets Indebtedness” does not include any Indebtedness under commercial bank facilities,
Indebtedness incurred in connection with a Sale and Leaseback Transaction, Indebtedness incurred in the ordinary course of business of the Company, Capitalized Lease Obligations or recourse transfer of any financial asset or any other type
of Indebtedness incurred in a manner not customarily viewed as a “securities offering.”
“Capital Stock” means (1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person, and (2) with respect to any Person that is not a corporation, any and all partnership or other equity interests of such Person.
“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be
required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP, other than any operating lease that would not be required to be capitalized and reflected as a liability
on a balance in accordance with GAAP prior to December 31, 2018.
“Cash Equivalents” means: (1) (a) U.S. dollars and Canadian dollars, (b) pounds sterling, euro, or any national currency of any participating member state of the European Union and
(c) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business; (2) marketable direct obligations issued by, or unconditionally guaranteed
by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof; (3) marketable direct obligations
issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either S&P or Moody’s; (4) commercial paper maturing no more than 24 months from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P
or at least P-2 from Moody’s; (5) demand and time deposit accounts, certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $100.0 million; (6) repurchase obligations with
a term of not more than seven days for underlying securities of the types described in clauses (1) through (4) above entered into with any bank meeting the qualifications specified in clause (5) above; (7) Indebtedness issued by Persons
with a rating of “A” or higher from S&P, “A2” or higher from Moody’s or “A” or higher from Fitch (or reasonably equivalent ratings of another internationally recognized ratings agency) with maturities of one year or less from the date
of acquisition and in each case in a currency permitted under clause (1 )(a) or (1)(b) above; (8) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AA- (or the equivalent
thereof) or better by S&P, Aa3 (or the equivalent thereof) or better by Moody’s or AA- (or the equivalent thereof) or better by Fitch, and in each case in a currency permitted under clause (1)(a) or (1)(b) above; (9) investments in
money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (8) above; (10) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any
successor rule of the Commission under the Investment Company Act of 1940, as amended; and (11) solely in respect of the ordinary course cash management activities of the Foreign Subsidiaries of the Company, equivalents of the investments
described in clause (2) above to the extent guaranteed by any member state of the European Union or the country in which the applicable Foreign Subsidiary operates and equivalents of the investments described in clause (5) above issued,
accepted or offered by any commercial bank organized under the laws of a member state of the European Union or the jurisdiction of organization of the applicable Foreign Subsidiary having at the date of acquisition thereof combined capital
and surplus of not less than $100.0 million.
“Cash Management Obligations”: the collective reference to any obligation of the Company or any of its Subsidiaries in respect of (i) overdrafts and related liabilities that arise
from treasury services, depositary services, cash pooling services or cash management services (including, without limitation, check drawing and automated payment services (including depository, overdraft, controlled disbursements,
automated clearinghouse transactions, return items, netting, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services, Society for Worldwide Interbank Financial
Telecommunication transfers, cash pooling and operational foreign exchange management or any similar transactions), (ii) credit, debit, travel and expense, corporate purchasing, merchant, stored value and/or other purchasing cards
(including, without limitation, the processing of payments and other administrative services with respect thereto), (iii) dealer incentive, supplier finance or similar programs, current account facilities, (iv) other banking products or
services as may be requested by the Company or any Restricted Subsidiary (other than letters of credit and other than loans and advances except indebtedness arising from services described in clauses (i) through (iv) of this definition) and
(v) Supplemental Banking Services Obligations.
“CFC” means a Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.
“CFC Holding Company” means any Person that owns no material assets other than the Capital Stock, or Capital Stock and Indebtedness, of (x) one or more direct or indirect CFCs or (y)
one or more other CFC Holding Companies; provided, for the avoidance of doubt, that an entity shall not cease to be a CFC Holding Company by virtue of temporarily holding cash as long as it promptly distributes such cash to its owners or
contributes such cash to one or more of the CFCs or CFC Holding Companies that it owns.
“Change of Control” means the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company (provided that a merger or consolidation of the Company shall not be deemed to be the sale, lease, exchange or transfer of all or substantially all of
the assets of the Company) to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”), together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of
this Indenture);
(ii) the approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company (whether or not otherwise in compliance with the provisions of this Indenture); or
(iii) any Person or Group shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company.
“Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing agency.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, or if at any time after the execution of this Indenture such Commission is not existing
and performing the applicable duties now assigned to it, then the body or bodies performing such duties at such time.
“Commodity Agreement” means any commodity futures contract, commodity option or other similar agreement or arrangement entered into by the Company or any Restricted Subsidiary of the
Company designed to protect the Company or any of its Restricted Subsidiaries against fluctuations in the price of the commodities at the time used in the ordinary course of business of the Company or any of its Restricted Subsidiaries and
not for speculative purposes.
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of, such
Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common stock.
“Company” means PHINIA Inc., a Delaware corporation, and any successor in interest thereto.
“Company Request” and “Company Order” mean, respectively, a written request, order or consent signed in the name of the Company by an Officer of the Company.
“Consolidated EBITDA” means, with respect to the Company, for any period, the sum (without duplication) of: (1) Consolidated Net Income; and (2) to the extent Consolidated Net
Income has been reduced thereby: (A) provision for taxes based on income, profits, capital or assets, including, without limitation, federal, state, local, provincial, foreign, excise, franchise, property and similar taxes and foreign
withholding taxes and foreign unreimbursed value added taxes (including, in each case, any future taxes or other levies that replace or are intended to be in lieu of taxes, and any penalties and interest related to such taxes or arising
from tax examinations) of or with respect to the Company and the Restricted Subsidiaries expensed or accrued in accordance with GAAP for such period; (B) Consolidated Interest Expense, write-off of debt discount and debt issuance costs and
commissions, discounts, premiums and other fees, charges and expenses associated with the incurrence, purchase, redemption, termination or modification of Indebtedness and Hedging Obligations (including with respect to the Notes and the
transactions in connection therewith); any interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP); (C) Consolidated Non-cash Charges; (D)
transaction fees, costs and expenses (including rationalization, legal, tax, consulting, advisory and structuring fees, costs and expenses) incurred in connection with the consummation of any Specified Transaction permitted under this
Indenture (or any Specified Transaction proposed and not consummated); (E) the amount of any minority and/or non-controlling interest expense consisting of Subsidiary income attributable to minority and/or non-controlling equity interests
of third parties in any non-Wholly Owned Restricted Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; (F) losses, charges, costs and expenses incurred in connection with discontinued operations
(but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, such losses shall be added back in the calculation of Consolidated EBITDA only when and to the
extent such operations are actually disposed of), restructurings, casualty and condemnation events, and dispositions consummated outside the ordinary course of business; (G) restructuring charges and related charges, the amount of any
costs, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings (including sourcing), operating expense reductions, operating improvements, product margin synergies and product cost and
other synergies and similar initiatives, integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, restructuring costs (including those related to tax restructurings),
charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives, operating expense reductions, business optimization and other restructuring costs, charges, accruals, reserves and
expenses (including, without limitation, inventory and business optimization programs, the opening and pre-opening, closure, relocation and/or consolidation of facilities and locations, unused warehouse space costs, costs related to entry
into new markets, unused warehouse space costs, and consulting and other professional fees, signing or retention costs, retention or completion charges or bonuses, relocation expenses, recruitment expenses (including headhunter fees and
relocation expenses) severance payments, earnout payments, curtailments and modifications to or losses on settlement of pension and post-retirement employee benefit plans, excess pension charges, contract termination costs, future lease
commitments, system establishment costs and implementation costs and project startup costs and expenses attributable to the implementation of cost savings initiatives and professional and consulting fees incurred in connection with any of
the foregoing); and (H) pro forma adjustments, pro forma cost savings, operating expense reductions, operating improvements and synergies, in each case,
related to any Specified Transaction consummated by the Company or any of its Restricted Subsidiaries and projected by the Company in good faith to result from actions taken or expected to be taken (in the good faith determination of the
Company) within 24 months after the date any such Specified Transaction is consummated, and any “run rate” cost savings, operating expense reductions, operating improvements and synergies projected by the Company in good faith to result
from actions either taken or expected to be taken within 24 months after the date of determination to take such action; provided that (i) such cost savings, operating expense reductions, operating
improvements and synergies are reasonably identifiable and factually supportable, (ii) no cost savings, operating expense reductions, operating improvements or synergies shall be added pursuant to this clause (H) to the extent duplicative
of any expenses or charges relating to such cost savings, operating expense reductions or synergies that are included in clause (A) through (G) above (it being understood and agreed that “run rate” shall mean the full recurring benefit that
is associated with any action taken), and (iii) the share of any such cost savings, operating expense reductions, operating improvements and synergies with respect to a Joint Venture that are to be allocated to the Company or any of the
Subsidiaries shall not exceed the total amount thereof for any such Joint Venture multiplied by the percentage of income of such Joint Venture expected to be included in Consolidated EBITDA for the relevant period; provided that the aggregate amount of all adjustments pursuant to this clause (H) shall not exceed 25% of Consolidated EBITDA for any period (such percentage, in each case, calculated before any amounts are added to
Consolidated EBITDA pursuant to this clause (H)); less any non-cash items increasing Consolidated Net Income for such period, all as determined on a consolidated basis for the Company and the
Restricted Subsidiaries in accordance with GAAP.
“Consolidated Fixed Charge Coverage Ratio” means, with respect to the Company, the ratio of Consolidated EBITDA of the Company during the four full fiscal quarters for which
financial statements are available (the “Four Quarter Period”) immediately prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the “Transaction Date”) to Consolidated Fixed
Charges of the Company for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on
a pro forma basis for the period of such calculation to:
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(1) |
the incurrence or repayment of any Indebtedness of the Company or any of the Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and
any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and
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(2) |
any Specified Transaction occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date as if such Specified
Transaction occurred on the first day of the Four Quarter Period.
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In addition, for purposes of this definition:
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(A) |
if since the beginning of such Four Quarter Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Company or any of its
Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, amalgamation, merger, consolidation, discontinued operation or operational change that would have required
adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such transaction had occurred at the beginning of the applicable Four Quarter
Period;
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(B) |
interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
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(C) |
interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period;
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(D) |
interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate
per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date;
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(E) |
if interest on any Indebtedness actually incurred or outstanding on the Transaction Date is determined, or may optionally be determined, at an interest rate based upon a factor of a prime or similar rate, a term secured overnight
financing rate or another benchmark rate, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four Quarter Period; and
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(F) |
notwithstanding clause (D) or (E) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the
rate per annum in effect on the Transaction Date resulting after giving effect to the operation of such agreements on such date.
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“Consolidated Fixed Charges” means, with respect to the Company for any period, the sum, without duplication, of: (1) Consolidated Interest Expense, plus (2) the product of (x) the amount of all dividend payments on any series of Preferred Stock of the Company or any Restricted Subsidiary paid, accrued and/or scheduled to be paid or accrued during such period (other
than dividends paid in Qualified Capital Stock) multiplied by (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal,
state and local income tax rate of the Company, expressed as a decimal.
“Consolidated Intangible Assets” means the consolidated intangible assets of the Company and its Restricted Subsidiaries, as shown on the consolidated balance sheet of the Company
as of the most recently completed fiscal quarter for which financial statements are available. As used herein, “intangible assets” means the value (net of any applicable reserves) as shown on such balance sheet of (i) all patents, patent
rights, trademarks, trademark registrations, servicemarks, trade names, business names, brand names, copyrights, designs (and all reissues, divisions, continuations and extensions thereof), or any right to any of the foregoing, (ii)
goodwill and (iii) all other intangible assets.
“Consolidated Interest Expense” means, with respect to the Company for any period, the sum of, without duplication: (1) the aggregate of the interest expense of the Company and the
Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including, without limitation, (A) any amortization of original issue discount, (B) the net costs under Interest Swap Obligations, (C) all
capitalized interest, and (D) the interest portion of any deferred payment obligation; (2) the interest component of Capitalized Lease Obligations accrued by the Company and the Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP; and (3) to the extent not included in clause (1) above, factoring discounts and net losses relating to sales of accounts receivable pursuant to Permitted Receivables Financings during such period
as determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” means, with respect to the Company, for any period, the aggregate net income (or loss) of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or abandonments or reserves relating thereto;
(2) extraordinary, non-recurring or unusual gains, income, losses or expenses (determined on an after-tax basis) (including severance, relocation costs, integration costs,
consolidation and costs related to the opening, closure, relocation and/or consolidation of facilities, signing, retention or completion costs and bonuses, recruiting costs, recruiting and hiring bonuses, transition costs, costs incurred in
connection with acquisitions (whether or not consummated) after the Issue Date, including integration costs);
(3) any non-cash compensation expense incurred for grants and issuances of stock appreciation or similar rights, stock options, restricted shares or other rights or Equity Interests
to officers, directors and employees of the Company and its Subsidiaries (including any such grant or issuance to a 401(k) plan or other retirement benefit plan);
(4) the net income (but not loss) of any Restricted Subsidiary (other than a Guarantor) to the extent that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is restricted by a contract, operation of law or otherwise unless actually distributed;
(5) the net income (loss) of any Person, other than a Restricted Subsidiary, except in the case of net income to the extent of cash dividends or distributions paid to the Company
or to a Restricted Subsidiary by such Person;
(6) income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified
as discontinued) from and after the date that such operation is classified as discontinued;
(7) in the case of a successor to the Company by consolidation or merger or as a transferee of the Company’s assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets;
(8) write-downs resulting from the impairment of goodwill or intangible assets;
(9) the amount of amortization or write-off of deferred financing costs and debt issuance costs of the Company and its Restricted Subsidiaries during such period and any premium or
penalty paid in connection with redeeming or retiring Indebtedness of the Company and its Restricted Subsidiaries prior to the Stated Maturity thereof pursuant to the agreements governing such Indebtedness;
(10) any and all costs, expenses, fee, fines, penalties, judgments, legal settlements and other amounts associated with any restructuring, litigation, claim, proceeding or
investigation related to or undertaken by the Company or any of its Restricted Subsidiaries and included in the Company’s audited financial statements prepared in accordance with GAAP, together with any related provision for taxes;
(11) the net income for such period shall not include the cumulative effect of a change in accounting principles or policies during such period;
(12) effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the Person’s consolidated financial statements
pursuant to GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue, deferred rent, deferred trade incentives and other lease-related items and
debt line items thereof) resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated acquisition or the amortization or write-off or removal of revenue otherwise
recognizable on any amounts thereof, net of taxes, shall be excluded or added back in the case of lost revenue;
(13) (i) any fees, commissions and expenses incurred during such period, or any amortization or write-off thereof for such period in connection with any acquisition, Investment, Asset
Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, 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
such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded, and (ii) accruals and reserves that are established or adjusted
within 12 months after the date of any acquisition or other similar Investment, in each case, in accordance with GAAP or as a result of the adoption or modification of accounting policies, shall be excluded;
(14) any unrealized or realized net gain or loss resulting from currency translation or transaction gains or losses impacting net income (including currency remeasurements of
Indebtedness) and any foreign currency translation or transaction gains or losses shall be excluded, including those resulting from intercompany Indebtedness;
(15) any unrealized net gains and losses resulting from Hedging Obligations in accordance with GAAP or any other derivative instrument pursuant to the application of Accounting
Standards Codification Topic Number 815 “Derivatives and Hedging” shall be excluded;
(16) to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a good faith determination that it expects to receive reimbursement within 365
days (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), the amount of any fee, cost, expense or reserve with respect to liability or casualty events or business interruption shall be
excluded.
“Consolidated Net Tangible Assets” means, on any date of determination, the excess of Consolidated Total Assets over Consolidated Intangible Assets.
“Consolidated Non-cash Charges” means, with respect to the Company, for any period, the aggregate depreciation, amortization and all other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income of the Company for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which requires an accrual of or a reserve for cash payments for
any future period).
“Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness of the Company and the Restricted Subsidiaries that is
secured by Liens as of such date minus the aggregate amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries at such time to (b) the aggregate amount of
Consolidated EBITDA of the Company during the Four Quarter Period immediately prior to the Transaction Date for which financial statements are available, in each case with such pro forma adjustments to Consolidated Total Indebtedness and
Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”
“Consolidated Total Assets” means the total assets of the Company and its Restricted Subsidiaries, as shown on the consolidated balance sheet of the Company as of the most recently
completed fiscal quarter for which financial statements are available.
“Consolidated Total Debt Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness of the Company and the Restricted Subsidiaries as of such
date minus the aggregate amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries at such time to (b) the aggregate amount of Consolidated EBITDA of the
Company during the Four Quarter Period immediately prior to the Transaction Date for which financial statements are available, in each case with such pro forma adjustments to Consolidated Total
Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”
“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Company and
the Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by bonds, notes, debentures or similar instruments or
letters of credit or bankers’ acceptances (and excluding (x) any undrawn letters of credit and (y) all obligations relating to Permitted Receivables Financings) and (2) the aggregate amount of all outstanding Disqualified Capital Stock of
the Company and all Disqualified Capital Stock and Preferred Stock of the Restricted Subsidiaries (excluding items eliminated in consolidation), with the amount of such Disqualified Capital Stock and Preferred Stock equal to the greater of
their respective voluntary or involuntary liquidation preferences and Maximum Fixed Repurchase Prices, in each case determined on a consolidated basis in accordance with GAAP.
For purposes of this definition of Consolidated Total Indebtedness, the “Maximum Fixed Repurchase Price” of any Disqualified Capital Stock or Preferred Stock that does not have a
fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital Stock or Preferred Stock were purchased on the applicable date on which
Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock or Preferred Stock, such fair market
value shall be determined reasonably and in good faith by the Company.
“Credit Agreement” means the Credit Agreement, dated as of July 3, 2023, among the Company, the Guarantors, the lenders party thereto from time to time in their capacities as lenders
thereunder and Bank of America, N.A., as administrative agent, swing line lender and an L/C issuer, as amended by Amendment No. 1, dated as of April 4, 2024, together with the documents related thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time in accordance with their terms, including
any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder (provided that such increase in
borrowings is permitted by Section 407 (including the definition of “Permitted Indebtedness”)) or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders.
“Credit Agreement Agent” means the administrative agent under the Credit Agreement.
“Credit Facilities” means one or more debt facilities (including the Credit Agreement and the Secured Notes) or commercial paper facilities providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to lenders or to Special Purpose Entities formed to borrow from lenders against such receivables) or letters of credit, or any indentures, debt securities or other form
of debt financing (including convertible or exchangeable debt instruments), in each case, as amended, supplemented, modified, extended, renewed, restated or refunded in whole or in part from time to time.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Restricted
Subsidiary against fluctuations in currency values.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice of both would be, an Event of Default.
“Depositary” means DTC, its nominees and successors.
“Delaware LLC Division” means the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited
Liability Company Act.
“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 Equivalents received in connection with a subsequent sale, redemption, repurchase
of, or collection or payment on, such Designated Non-cash Consideration.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (excluding any transactions similar to an Excess Proceeds Offer or Change of Control Offer), pursuant to a sinking fund obligation or otherwise, or is
mandatorily exchangeable for Indebtedness, or is redeemable or exchangeable for Indebtedness, at the sole option of the holder thereof on or prior to the final maturity date of the Notes.
“Domestic Restricted Subsidiary” means a Restricted Subsidiary incorporated or otherwise organized under the laws of the United States or any State thereof or the District of
Columbia.
“DTC” means The Depository Trust Company or any successor thereto.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock, including any Permitted Convertible Indebtedness until such Permitted Convertible Indebtedness has been converted pursuant to the terms thereof).
“Equity Offering” means any public or private sale of the Common Stock of the Company, other than any public offering with respect to the Company’s Common Stock registered on Form
S-8 or other issuances upon exercise of options by employees of the Company or any of its Restricted Subsidiaries.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor securities clearing agency.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto, and the rules and regulations of the Commission promulgated
thereunder.
“Excluded Subsidiary” means (a) any Immaterial Domestic Subsidiary, (b) any Accounts Receivable Entity, not-for-profit Subsidiary, captive insurance company or other Special Purpose
Entity, (c) any CFC Holding Company, (d) any (i) Foreign Subsidiary or (ii) Domestic Subsidiary of a Foreign Subsidiary that is a CFC, (e) any Subsidiary that is not a Wholly Owned Restricted Subsidiary; provided
that an existing Guarantor shall not be released from its Subsidiary Guarantee and shall not be considered an Excluded Subsidiary solely as a result of such Guarantor becoming a non-Wholly Owned Restricted Subsidiary if as a result of (A) a
disposition or issuance of Equity Interests of such Subsidiary, in either case, to a person that is an Affiliate of the Company or (B) any transaction entered into primarily for the purpose of such Subsidiary ceasing to constitute a
Guarantor, (f) any Subsidiary that is prohibited from providing a Subsidiary Guarantee in respect of the Notes Obligations by (i) any provision of any agreement, instrument or other undertaking to which such Subsidiary is a party or by
which it or any of its assets or property is bound existing on the date such Person became a Subsidiary; provided that such provision is not entered into for the purpose of qualifying as an
“Excluded Subsidiary” under this Indenture or (ii) applicable law, (g) any Subsidiary that would require the consent, approval, license or authorization of any third party (other than the Company or any of its Subsidiaries) in order to
provide a Subsidiary Guarantee in respect of the Notes Obligations pursuant to any agreement, instrument or other undertaking referred to in clause (f)(i) above or applicable law (in each case, to the extent such consent, approval, license
or authorization has not been received), (h) prior to the consummation of a merger transaction, any Subsidiary that is newly formed for the purpose of consummating such merger transaction pursuant to an acquisition permitted by this
Indenture, which Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it substantially contemporaneously with the closing of such merger transaction, (i) any Subsidiary to the extent the
provision of a Subsidiary Guarantee by such Subsidiary in respect of the Notes Obligations would reasonably be expected to result in material adverse tax consequences to the Company or any of its Subsidiaries as mutually agreed by the
Company and the Credit Agreement Agent, (j) any Unrestricted Subsidiary and (k) any Subsidiary with respect to which, as reasonably determined by the Credit Agreement Agent and the Company, the burden or cost or other consequences
(including material adverse tax consequences) of providing a Subsidiary Guarantee outweighs the benefits to the Secured Parties (as defined in the Credit Agreement); provided that any such
Subsidiary that is an Excluded Subsidiary will cease to be an Excluded Subsidiary at any time such Subsidiary incurs any Qualifying Indebtedness that, in the aggregate, exceeds $25 million or guarantees any Qualifying Indebtedness incurred
or guaranteed by the Company or any Guarantor that, in the aggregate, exceeds $25 million.
“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors of the Company acting reasonably and in good faith and shall
be evidenced by a Board Resolution of the Board of Directors of the Company.
“Fitch” means Fitch Ratings Ltd. or any successor to the rating agency business thereof.
“Foreign Restricted Subsidiary” means any Restricted Subsidiary that is organized and existing under the laws of a jurisdiction other than the United States, any State thereof or the
District of Columbia.
“Foreign Subsidiary” means any Subsidiary that is organized and existing under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which
are in effect as of the Issue Date.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange, any self-regulatory organization (including the National Association
of Insurance Commissioners) and any applicable supranational bodies (such as the European Union or the European Central Bank).
“Guarantor” means (1) each Wholly Owned Domestic Restricted Subsidiary of the Company (other than any Excluded Subsidiary) as of the Issue Date and (2) each other Restricted
Subsidiary that in the future is required to or executes a Subsidiary Guarantee pursuant to Section 414 or otherwise; provided that any Person constituting a Guarantor as described above
shall cease to constitute a Guarantor when its Subsidiary Guarantee is released in accordance with the terms of this Indenture.
“Guarantor Supplemental Indenture” means a Supplemental Indenture, to be entered into substantially in the form attached hereto as Exhibit D.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person in respect of (a) interest rate, commodity or currency swap agreements, interest rate,
commodity or currency cap agreements, interest rate, commodity or currency collar agreements or (b) other agreements or arrangements designed to protect such Person against fluctuations in interest rates, commodity prices and/or currency
exchange rates.
“Holder” or “Noteholder” means the Person in whose name a Note is registered in the Note Register.
“Immaterial Domestic Subsidiaries” means, at any time, any Domestic Restricted Subsidiary that does not own or hold assets (after the elimination of intercompany items) in excess of
an amount equal to (i) individually, 2.5% of the Consolidated Net Tangible Assets and (ii) together with all such Restricted Subsidiaries, 5.0% of the Consolidated Net Tangible Assets. Notwithstanding the foregoing, no Domestic Restricted
Subsidiary that guarantees the Credit Agreement or any obligation thereunder shall be deemed an Immaterial Domestic Subsidiary.
“Indebtedness” means, with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 90 days or more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in respect of Indebtedness of any other Person referred to in clauses (1) through (5) above and clause (8) below;
(7) all Obligations of any other Person of the type referred to in clauses (1) through (6) above which are secured by any Lien on any property or asset of such Person, the amount of
such Obligation being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Obligation so secured;
(8) all Obligations under Currency Agreements and Interest Swap Obligations of such Person; provided that the amount of Indebtedness
represented by a Currency Agreement or Hedging Obligation shall be zero if such Currency Agreements or Interest Swap Obligations are Incurred for non-speculative purposes; and
(9) all Disqualified Capital Stock of the Company and all Preferred Stock of a Restricted Subsidiary with the amount of Indebtedness represented by such Disqualified Capital Stock or
Preferred Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued and unpaid dividends, if any.
For purposes of the definition of Indebtedness, the “maximum fixed repurchase price” of any Disqualified Capital Stock or Preferred Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital Stock or Preferred Stock were purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Capital Stock or Preferred Stock, such Fair Market Value shall be determined reasonably and in good faith by the Board
of Directors of the issuer of such Disqualified Capital Stock or Preferred Stock. Indebtedness shall not include any Permitted Bond Hedge Transaction, any Permitted Warrant Transaction or any obligations thereunder.
“Independent Financial Advisor” means a firm (1) which does not, and whose directors, officers and employees and Affiliates do not, have a direct or indirect material financial
interest in the Company and (2) which, in the judgment of the Board of Directors of the Company, is otherwise independent and qualified to perform the task for which it is to be engaged.
“Initial Notes” has the meaning assigned to such term in the recitals of this Indenture.
“Insolvency or Liquidation Proceeding” means, with respect to any Person, (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law,
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to such Person or with respect to any of
its assets, (c) any liquidation, dissolution, reorganization or winding up of such Person whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
“interest,” with respect to the Notes, means interest on the Notes and, except for purposes of Article IX, additional or special interest pursuant to the terms of any Note.
“Interest Swap Obligations” means the obligations of the Company and the Restricted Subsidiaries pursuant to any arrangement with any other Person, whereby, directly or indirectly,
the Company or any Restricted Subsidiary is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by
such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate lock obligations, interest rate swaps, caps, floors, collars and similar
agreements.
“Investment” means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other
securities or evidences of Indebtedness issued by, any other Person. “Investment” shall exclude extensions of trade credit by the Company and the Restricted Subsidiaries on commercially reasonable terms in accordance with normal trade
practices of the Company or such Restricted Subsidiaries, as the case may be.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by S&P (or the equivalent rating by any Successor
Rating Agency).
“Investment Grade Securities” means (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other
than Cash Equivalents); (ii) securities or instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; (iii) investments in any fund
that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than
the United States customarily utilized for high-quality investments.
“Issue Date” means September 17, 2024, the date of initial issuance of the Notes.
“Joint Venture” means any Person in which the Company and/or its Subsidiaries hold less than a majority of the Capital Stock, and which does not constitute a Subsidiary of the
Company, whether direct or indirect.
“LCT Determination Date” means (i) the date a definitive agreement for such Limited Condition Transaction is entered into, in the case of a Limited Condition Transaction described in
clause (a) of the definition thereof, or (ii) the date on which irrevocable notice of the applicable redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Capital Stock or Preferred Stock
is delivered, in the case of a Limited Condition Transaction described in clause (b) of the definition thereof.
“Lien” means any lien, mortgage, deed of trust, deed to secure debt, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give any security interest).
“Limited Condition Transaction” means any (a) acquisition, including by way of merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock
or otherwise, of any assets, business or Person, or any other Investment by one or more of the Company and its Restricted Subsidiaries permitted by this Indenture (and including the incurrence or assumption of Indebtedness in connection
therewith), in each case, whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, and (b) redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness,
Disqualified Capital Stock or Preferred Stock requiring the giving of advance irrevocable notice of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Material Intellectual Property” means any intellectual property that is material to the normal operation of the business of the Company and its Restricted Subsidiaries, taken as a
whole.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to its rating agency business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest), received by the Company or any of the Restricted Subsidiaries from such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees, sales commissions and
relocation expenses);
(2) taxes paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;
(3) repayments of Indebtedness secured by the property or assets subject to such Asset Sale that is required to be repaid in connection with such Asset Sale; and
(4) appropriate amounts to be determined by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations associated with such Asset Sale.
“Non‑U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.
“Notes” means the Initial Notes and any Additional Notes that are actually issued. 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.
“Notes Obligations” means Obligations in respect of the Notes, this Indenture and the Subsidiary Guarantees (including Post-Petition Interest accruing on or after the commencement of
any Insolvency or Liquidation Proceeding, whether or not constituting an allowed or allowable claim in such proceedings).
“Obligations” means any and all obligations with respect to the payment of (a) any principal of or interest (including Post-Petition Interest accruing on or after the commencement of
any Insolvency or Liquidation Proceedings, whether or not a claim for Post-Petition Interest is allowed or allowable in such proceeding) or premium on any Indebtedness, including any reimbursement obligation in respect of any letter of
credit and (b) any fees, indemnification obligations, damages, expense reimbursement obligations or other liabilities payable under the documentation governing any Indebtedness.
“Offering Memorandum” means the Offering Memorandum of the Company, dated September 10, 2024, relating to the offering of the Initial Notes.
“Officer” means, with respect to any Person, the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President, any Vice President, the Treasurer or the
Secretary (or any person serving the equivalent function of any of the foregoing) of such Person (or the general partner, managing member or sole member of such Person) or any individual designated as an “Officer” for purposes of this
Indenture by the Board of Directors of such Person (or the general partner, managing member or sole member of such Person).
“Officer’s Certificate” means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements set forth in this Indenture.
“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. Each such opinion shall include the statements provided for in Section 106.
“Outstanding” or “outstanding,” when used with respect to Notes means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,
except:
(i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Company or any Affiliate of the Company holds the Note (and such Note shall be deemed to be outstanding for purposes of this Indenture);
provided that in determining whether the Holders of the requisite amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right to act with respect to such Notes and that the pledgee is not the Company or an Affiliate of the Company.
“Outstanding Permitted Receivables Financings” means the receivables sold, contributed or financed pursuant to a Permitted Receivables Financing. For the avoidance of doubt,
regardless of the accounting treatment under GAAP, it is understood that the amount financed pursuant to a Permitted Receivables Financing is the aggregate amount of capital funded by the purchasers (other than an Accounts Receivable
Entity) thereunder and outstanding at the time of determination.
“Pari Passu Indebtedness” means (1) with respect to the Company, the Notes and any Indebtedness which ranks equally in right of payment to
the Notes and (2) with respect to any Guarantor, its Subsidiary Guarantee and any Indebtedness which ranks equally in right of payment to such Guarantor’s Subsidiary Guarantee.
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Company; provided that neither the Company nor any of its Affiliates shall act as Paying Agent for purposes of Section 1103 or Section 1205. The Trustee will initially act as Paying Agent for the Notes.
“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to the Company’s Common Stock (or other
securities or property following a merger event or other change of the Common Stock of the Company) purchased by the Company in connection with the issuance of any Permitted Convertible Indebtedness; provided
that, the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Company from the sale of any related Permitted Warrant Transaction, does not exceed
the net proceeds received by the Company from the issuance of such Permitted Convertible Indebtedness in connection with such Permitted Bond Hedge Transaction.
“Permitted Convertible Indebtedness” means any unsecured notes issued by the Company that are convertible into a fixed number (subject to customary anti-dilution adjustments,
“make-whole” increases and other customary changes thereto) of shares of Common Stock of the Company (or other securities or property following a merger event or other change of the Common Stock of the Company), cash or any combination
thereof (with the amount of such cash or such combination determined by reference to the market price of such Common Stock or such other securities); provided that, the Indebtedness thereunder
must satisfy each of the following conditions: (i) both immediately prior to and upon giving effect (including pro forma effect) thereto, no Default or Event of Default shall exist or result therefrom, (ii) such Indebtedness is not
guaranteed by any Restricted Subsidiary of the Company, (iii) any cross-default or cross-acceleration event of default (each howsoever defined) provision contained therein that relates to indebtedness or other payment obligations of the
Company or any other obligor (such indebtedness or other payment obligations, a “Cross-Default Reference Obligation”) contains a cure period of at least thirty (30) calendar days (after written notice to the issuer of such Debt by the
trustee or to such issuer and such trustee by Holders of at least 25% in aggregate principal amount of such Indebtedness then outstanding) before a default, event of default, acceleration or other event or condition under such
Cross-Default Reference Obligation results in an event of default under such cross-default or cross-acceleration provision and (iv) the terms, conditions and covenants of such Indebtedness must be customary for convertible Indebtedness of
such type (as determined by the Board of Directors of the Company, or a committee thereof, in good faith). For the avoidance of doubt, Permitted Convertible Indebtedness shall at all times be valued at the full stated principal amount
thereof and shall not include any reduction or appreciation in value of the shares deliverable upon conversion thereof.
“Permitted Indebtedness” means, without duplication, each of the following:
(1) Indebtedness under the Notes, this Indenture and any Subsidiary Guarantees, in each case outstanding on the Issue Date;
(2) Indebtedness incurred pursuant to a Credit Facility, including but not limited to the Credit Agreement and the Secured Notes, in an aggregate principal amount at any time
outstanding (including any Refinancing thereof) not to exceed the sum of (x) $1,300.0 million, (y) an amount equal to the greater of (i) $400.0 million and (ii) 75.0% of Consolidated EBITDA for the Four Quarter Period most recently ended,
calculated on a pro forma basis and (z) an amount such that at the time of incurrence and after giving pro forma effect thereto (including the use of
proceeds therefrom and with all amounts incurred pursuant to this clause (z) deemed to be secured by a Lien for purposes of the calculation hereunder), the Consolidated Secured Debt Ratio would not be greater than 1.50 to 1.00;
(3) Indebtedness consisting of the accretion of original issue discount with respect to any Permitted Convertible Indebtedness;
(4) Indebtedness incurred in the ordinary course of business in respect of obligations of the Company or any Restricted Subsidiary to pay the deferred purchase price of goods or
services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not
in connection with the borrowing of money;
(5) other Indebtedness of the Company and the Restricted Subsidiaries outstanding on the Issue Date, other than Indebtedness incurred pursuant to clauses (1)-(2) above;
(6) Interest Swap Obligations entered into to protect the Company and/or any Restricted Subsidiary from fluctuations in interest rates on Indebtedness incurred in accordance with
this Indenture to the extent the notional principal amount of such Interest Swap Obligations does not exceed the principal amount of the Indebtedness to which such Interest Swap Obligations relate;
(7) Indebtedness under Currency Agreements and Commodity Agreements; provided that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company and the Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities
and compensation payable thereunder;
(8) Indebtedness of a Restricted Subsidiary to the Company or to a Restricted Subsidiary for so long as such Indebtedness is held by the Company, a Restricted Subsidiary or the
lenders or collateral agent under any agreement governing Secured Indebtedness permitted to be incurred under Section 407 and Section 413, in each case subject to no Lien held by a Person other than the Company, a Restricted
Subsidiary or the lenders or collateral agent under any agreement governing Secured Indebtedness permitted to be incurred under Section 407 and Section 413; provided that if as of
any date any Person other than the Company, a Restricted Subsidiary or the lenders or collateral agent under any agreement governing Secured Indebtedness permitted to be incurred under Section 407 and Section 413 owns or
holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (8) by the issuer of such Indebtedness;
(9) Indebtedness of the Company to a Restricted Subsidiary for so long as such Indebtedness is held by a Restricted Subsidiary or the lenders or the collateral agent under any
agreement governing Secured Indebtedness permitted to be incurred under Section 407 and Section 413 and is subject to no Lien other than a Lien in favor of the lenders or collateral agent under any agreement governing
Secured Indebtedness permitted to be incurred under Section 407 and Section 413; provided that (a) any Indebtedness of the Company to any Restricted Subsidiary is unsecured and,
except in the case of Indebtedness owed to Foreign Subsidiaries of the Company, subordinated, pursuant to a written agreement, to the Company’s obligations under this Indenture and the Notes and (b) if as of any date any Person other than a
Restricted Subsidiary owns or holds any such Indebtedness or any Person holds a Lien other than a Lien in favor of the lenders or collateral agent under any agreement governing Secured Indebtedness permitted to be incurred under Section
407 and Section 413, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (9) by the Company;
(10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten Business Days after
incurrence;
(11) Indebtedness incurred by the Company or its Restricted Subsidiaries in respect of (x) banker’s acceptances, bank guarantees, letters of credit, warehouse receipts or similar
reimbursement type instruments or obligations entered into in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance
or self-insurance or unemployment insurance or other Indebtedness with respect to reimbursement type obligations regarding workers compensation claims, in each case in the ordinary course of business or consistent with past practice or
industry practices and (y) obligations (including reimbursement obligations with respect to guaranties, letters of credit, bank guarantees or other similar instruments) in respect of tenders, statutory obligations, leases, governmental
contracts, trade contracts, stay, performance, bid, customs, appeal and surety bonds and performance and/or return of money bonds and completion guarantees or other obligations of a like nature provided by the Company or any of its
Restricted Subsidiaries in the ordinary course of business or consistent with past practice or industry practices;
(12) Refinancing Indebtedness;
(13) additional Indebtedness of the Company and the Restricted Subsidiaries in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount
or liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (including any Refinancing thereof), does not exceed the greater of (i) $230.0 million and (ii) 7.5% of Consolidated Net Tangible
Assets at any one time outstanding;
(14) additional Indebtedness of Foreign Subsidiaries of the Company in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount or
liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (including any Refinancing thereof), does not exceed the greater of (i) $205.0 million and (ii) 6.5% of Consolidated Net Tangible Assets
at any one time outstanding;
(15) Purchase Money Indebtedness and Capitalized Lease Obligations of the Company or a Restricted Subsidiary in an aggregate principal amount or liquidation preference that, when
aggregated with the principal amount or liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (including any Refinancing thereof), does not exceed the greater of (i) $315.0 million and (ii)
10.0% of Consolidated Net Tangible Assets, at any one time outstanding;
(16) Outstanding Permitted Receivables Financings;
(17) any Guarantee by the Company or a Restricted Subsidiary of any Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by the Company or such
Restricted Subsidiary under the terms of this Indenture at the time so incurred;
(18) Acquired Indebtedness, provided that either (i) immediately after giving effect to such transaction and any related financing
transactions on a pro forma basis as if the same had occurred at the beginning of the applicable Four Quarter Period, the Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 407(a) or (ii) immediately after giving effect to such transaction and any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable Four Quarter Period, the Consolidated Fixed Charge Coverage Ratio of the Company would be equal to or greater than the Consolidated Fixed
Charge Coverage Ratio of the Company immediately prior, and without giving effect, to such transaction; provided that the aggregate principal amount of Acquired Indebtedness incurred pursuant to
this clause (18) by Restricted Subsidiaries that are not Guarantors shall not exceed, together with the amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to the Consolidated Fixed Charge Coverage
Ratio test set forth in Section 407(a), the greater of (i) $300.0 million and (ii) 9.5% of Consolidated Net Tangible Assets at the time of incurrence;
(19) Indebtedness incurred by the Company or any Restricted Subsidiary to current or former directors, officers, employees or consultants or their respective estates, spouses or
former spouses to finance the purchase or redemption of Equity Interests of the Company permitted by Section 409(b)(iii), in an aggregate outstanding amount not exceeding, together with outstanding Investments permitted by clause
(4)(ii) of the definition of “Permitted Investments”, $15.0 million;
(20) Guarantees of foreign pension obligations and liabilities of the Company and/or any Subsidiary;
(21) Indebtedness arising from agreements providing for indemnification, purchase price adjustments or similar obligations incurred by the Company or its Restricted Subsidiaries in
connection with any acquisition or disposition in each case permitted by this Indenture;
(22) Indebtedness consisting of obligations of the Company or any Restricted Subsidiary under deferred compensation (e.g., earn-outs, indemnifications, incentive non-competes and
other contingent or deferred obligations) or other similar arrangements incurred by such Person in connection with any disposition or acquisition or other Investment in each case permitted by this Indenture;
(23) Indebtedness consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, (iii) obligations to reacquire assets or
inventory in connection with customer financing arrangements or (iv) obligations owing under supply, customer, distribution, license, lease or similar agreements, in each case with respect to clauses (i) through (iv), entered into in the
ordinary course of business;
(24) Indebtedness supported by a letter of credit issued or created by any Person (other than the Company or any of its Affiliates) by or for the account of the Company or any of its
Restricted Subsidiaries pursuant to another clause of this definition of “Permitted Indebtedness,” the availability of which is subject to a stated quantum in a principal amount not in excess of the stated amount of such letter of credit;
(25) [reserved];
(26) [reserved];
(27) Indebtedness of the Company or any Restricted Subsidiary as an account party in respect of trade letters of credit issued in the ordinary course of business or constituting
reimbursement obligations with respect to letters of credit, bank guarantees or similar instruments supporting trade payables, discounted bills of exchange, the discounting or factoring of receivables for credit management purposes;
(28) Indebtedness Incurred by the Company or a Restricted Subsidiary consisting of guarantees of Indebtedness of any Joint Venture that is not a Subsidiary of the Company to the
extent permitted as Investments under Section 409; and
(29) Indebtedness in respect of Cash Management Obligations.
If any Indebtedness incurred by the Company or any Restricted Subsidiary would qualify in more than one of the categories of Permitted Indebtedness as set forth in clauses (1) through (29)
of this definition, or is entitled to be incurred pursuant to Section 407(a), the Company may classify under which category such incurrence shall be deemed to have been made or, for the avoidance of doubt, later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with Section 407 (including this definition); provided that Indebtedness under the Credit Agreement and the Secured Notes
outstanding on the Issue Date will be deemed to have been incurred in reliance on the exception provided by clause (2)(x) of this definition of “Permitted Indebtedness” and may not be reclassified.
“Permitted Investments” means:
(1) Investments by the Company or any Restricted Subsidiary in any Person that is or will become immediately after such Investment a Restricted Subsidiary or that will merge into
or consolidate with the Company or a Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary;
(3) Investments in cash, Cash Equivalents and Investment Grade Securities;
(4) loans and advances to employees, officers and directors of the Company and the Restricted Subsidiaries (i) in the ordinary course of business for bona fide business purposes not in excess of an aggregate of the greater of (x) $25.0 million and (y) 1.0% of Consolidated Net Tangible Assets at any one time outstanding and (ii) in connection with any such Person’s
purchase of Equity Interests of the Company in an aggregate outstanding amount not exceeding, together with outstanding Indebtedness permitted by clause (19) of the definition of “Permitted Indebtedness”, $15.0 million;
(5) Commodity Agreements, Currency Agreements and Interest Swap Obligations entered into in the ordinary course of the Company’s or a Restricted Subsidiary’s businesses and
otherwise in compliance with this Indenture;
(6) extensions of trade credit in the ordinary course of business and Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in settlement of delinquent accounts;
(7) Investments made by the Company or the Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 411
or any other disposition of assets not constituting an Asset Sale;
(8) Investments in Persons, including, without limitation, Unrestricted Subsidiaries and Joint Ventures, engaged in a business similar or related to or logical extensions of the
businesses in which the Company and the Restricted Subsidiaries are engaged on the Issue Date, not to exceed the greater of (i) $95.0 million and (ii) 3.0% of Consolidated Net Tangible Assets at the time of such Investment, at any one time
outstanding (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value, but net of any repayments or other returns of capital on any such Investments that do not
increase the amount available for Restricted Payments pursuant to Section 409(a)(3)(E);
(9) Investments, in an aggregate amount together with all other Investments made pursuant to this clause (9) that are at that time outstanding, not to exceed the greater of (i)
$155.0 million and (ii) 5.0% of Consolidated Net Tangible Assets at the time of any such Investment, at any one time outstanding (with the Fair Market Value of each Investment being measured at the time made and without giving effect to
subsequent changes in value, but net of any repayments or other returns of capital on any such Investments that do not increase the amount available for Restricted Payments pursuant to Section 409(a)(3)(E);
(10) Investments in an Accounts Receivable Entity or otherwise supporting a Permitted Receivables Financing;
(11) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Capital Stock) of the Company;
(12) Guarantees and letters of credit issued in accordance with Section 407;
(13) any Investment by the Company or any Restricted Subsidiary existing on, or made pursuant to binding commitments existing on, the Issue Date and any extension, modification,
replacement, renewal or reinvestments of any such Investments existing or committed on the Issue Date; provided that the amount of any such Investment may be increased (x) as required by the terms
of such Investment or commitment as in existence on the Issue Date or (y) as otherwise permitted under this Indenture;
(14) any Investment held by any Person at the time that such Person becomes a Restricted Subsidiary or is merged with or into the Company or any Restricted Subsidiary; provided that such Investment was not made in connection with or in contemplation thereof;
(15) Investments to contribute, distribute or otherwise transfer (in one or more transactions) any assets of the Company or its Restricted Subsidiaries to or among the Company and its
Restricted Subsidiaries;
(16) Investments consisting of licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(17) Investments if, at the time of making such Investments, and after giving effect thereto (including, without limitation, the Incurrence of any Indebtedness to finance such
Investments), the Consolidated Total Debt Ratio would not exceed 3.00 to 1.00; provided that in no event shall this clause (17) be used to make Investments in (through designation or otherwise) any
Unrestricted Subsidiary;
(18) Investments consisting of customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture agreements and similar binding arrangements or related
activities arising in the ordinary course of business;
(19) Investments consisting of extensions of credit in the nature of accounts receivable, notes receivable arising from the grant of trade credit, and guarantees and letters of credit
for the benefit of existing or potential suppliers, customers, distributors, licensors, licensees, lessees and lessors, in each case in the ordinary course of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(20) agreements governing Hedging Obligations entered into to hedge actual exposure and not for speculative purposes;
(21) deposit accounts and securities accounts maintained in the ordinary course of business, and to the extent constituting an Investment, Cash Management Obligations;
(22) the Company’s or any Restricted Subsidiary’s entry into (including payments of premiums in connection therewith), and the performance of obligations under, any Permitted Bond
Hedge Transactions and Permitted Warrant Transactions in accordance with their terms;
(23) any Investments in a Joint Venture to the extent such Investment is substantially contemporaneously repaid in full with a dividend or other distribution from such Joint Venture;
(24) Investments consisting of or to finance purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses (or other grants or rights
to use or exploit) or leases of other assets, intellectual property, or other rights, in each case in the ordinary course of business;
(25) Investments maintained in connection with the Company and its Restricted Subsidiaries’ deferred compensation plan in the ordinary course of business;
(26) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and works compensation, performance and similar deposits in each case entered into
as a result of the operations of the business in the ordinary course;
(27) guarantees of leases (other than capital leases) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(28) Investments constituting advances, deposits, prepayments and other credits to, and guarantees and letters of credit for the benefit of, existing or potential suppliers,
customers, distributors, licensors, licensees, lessee and lessors, in each case, in the ordinary course of business, to maintain the ordinary course of business or where there is a reasonable expectation for a material commercial benefit,
as the case may be;
(29) repurchases of the Notes; and
(30) acquisitions by the Company or any of its Restricted Subsidiaries of obligations of one or more directors, officers, employees or consultants of the Company or any of its
Restricted Subsidiaries in connection with such director’s, officer’s, employee’s or consultant’s acquisition of Equity Interests of the Company or any Restricted Subsidiary, so long as no cash is actually advanced by the Company or any of
its Restricted Subsidiaries to such directors, officers, employees or consultants in connection with the acquisition of any such obligations.
“Permitted Liens” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either (A) not delinquent or (B) contested in good faith by appropriate proceedings and, in each case, as to which
the Company or any Restricted Subsidiary shall have set aside on its books such reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred in the ordinary course of
business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens on property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary of such Person and not incurred in connection with or in
contemplation thereof; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries
(and assets and property affixed or appurtenant thereto);
(4) Liens on property at the time such Person or any of its Subsidiaries acquires the property and not incurred in connection with or in contemplation thereof, including any
acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend
to any other property owned by such Person or any of its Restricted Subsidiaries (and assets and property affixed or appurtenant thereto);
(5) Liens arising out of leases or subleases granted in the ordinary course of business;
(6) any interest or title of a lessor under any lease;
(7) Liens arising out of consignments or similar arrangements for the sale of goods in the ordinary course of business;
(8) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including
any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, indemnity, warranty, surety, appeal and
similar bonds, bids, leases, contracts, performance and return-of-money bonds, completion guarantees and other similar obligations (exclusive of obligations for the payment of borrowed money);
(9) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the
review of such judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired;
(10) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not impairing in any material respect the ordinary conduct of
the business of the Company or any of the Restricted Subsidiaries;
(11) any interest or title of a lessor under any Capitalized Lease Obligation; provided that such Liens do not extend to any property or
asset which is not leased property subject to such Capitalized Lease Obligation;
(12) Liens securing Purchase Money Indebtedness or Capitalized Lease Obligations of the Company or any Restricted Subsidiary incurred pursuant to clause (15) of the definition of
“Permitted Indebtedness” in accordance with Section 407, and Liens securing Indebtedness which Refinances any such Indebtedness; provided, however,
that (A) the Purchase Money Indebtedness or Capitalized Lease Obligations (or Refinancing Indebtedness) shall not be secured by any property or assets of the Company or any Restricted Subsidiary other than the property and assets so
acquired (and assets affixed or appurtenant thereto and improvements thereto) and (B) the Lien shall be initially be created within 180 days after such acquisition or completion of construction, installation, improvement or repair of the
assets related to such Purchase Money Indebtedness or Capitalized Lease Obligation;
(13) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued
or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(14) Liens securing reimbursement obligations with respect to commercial letters of credit or bankers’ acceptances which encumber documents and other property relating to such
letters of credit and products and proceeds thereof;
(15) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Company or any of the Restricted
Subsidiaries, including rights of offset and setoff;
(16) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture;
(17) Liens securing Indebtedness and other Obligations under Commodity Agreements, Currency Agreements, Hedging Obligations and Cash Management Obligations, in each case permitted
under this Indenture;
(18) Liens securing Indebtedness constituting Acquired Indebtedness pursuant to clause (B) of the definition thereof (and any Indebtedness which Refinances such Indebtedness) incurred
in accordance with Section 407; provided that (A) such Liens secured such Indebtedness at the time of and prior to the incurrence of such Indebtedness by the Company or a Restricted
Subsidiary and were not granted in connection with, or in anticipation of, the incurrence of such Indebtedness by the Company or a Restricted Subsidiary and (B) such Liens do not extend to or cover any property or assets of the Company or
of any of the Restricted Subsidiaries other than the property or assets that secured such Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Restricted Subsidiary;
(19) Liens securing Indebtedness of Foreign Restricted Subsidiaries incurred in accordance with this Indenture; provided that such Liens do
not extend to any property or assets other than property or assets of Foreign Restricted Subsidiaries;
(20) Liens incurred in connection with a Permitted Receivables Financing;
(21) Liens securing Indebtedness permitted to be incurred pursuant to clause (2) of the definition of “Permitted Indebtedness” and all other Obligations relating thereto;
(22) Liens securing Indebtedness of Restricted Subsidiaries that are not Guarantors permitted to be incurred in accordance with Section 407;
(23) [reserved];
(24) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date (other than Liens permitted to be incurred pursuant to clause (21)
above and clause (26) below);
(25) [reserved];
(26) Liens securing the Notes and Subsidiary Guarantees outstanding on the Issue Date;
(27) Liens in favor of the Company or any Restricted Subsidiary;
(28) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured by a Lien
permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (x) are
no less favorable to Holders of the Notes and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (y) do not extend to or cover any property or assets of
the Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced;
(29) additional Liens securing Indebtedness of the Company and the Restricted Subsidiaries in an aggregate principal amount not to exceed the greater of (i) $190.0 million and (ii)
6.0% of Consolidated Net Tangible Assets, measured at the time of the incurrence of Indebtedness, at any one time outstanding;
(30) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(31) [reserved];
(32) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to Section 407; provided
that at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no greater than 1.50 to 1.00;
(33) deposits made or other security provided to secure liabilities to insurance brokers, insurance carriers under insurance or self-insurance arrangements in the ordinary course of
business; and
(34) security given to a public utility or any municipality or Governmental Authority when required by such utility or authority in connection with the operations of that Person in
the ordinary course of business.
For purposes of determining compliance with this definition, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but may be
incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such
categories of Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition.
“Permitted Receivables Financing” means any sale or contribution by the Company or a Restricted Subsidiary of accounts receivable and related assets intended to be (and which shall
be treated for purposes of this Indenture as) a true sale transaction with customary limited recourse based upon the collectibility of the receivables and related assets sold and the corresponding sale or pledge of such accounts receivable
and related assets (or an interest therein), in each case without any guarantee (excluding guarantees of obligations (other than of collectibility of receivables transferred or of Indebtedness) pursuant to representations, warranties,
covenants and indemnities customary for such transactions), by the Company or any Restricted Subsidiary other than an Accounts Receivable Entity.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Company’s Common Stock (or
other securities or property following a merger event or other change of the Common Stock of the Company) and/or cash (in an amount determined by reference to the price of such Common Stock) sold by the Company substantially concurrently
with any purchase by the Company of a related Permitted Bond Hedge Transaction.
“Person” means an individual, partnership, corporation, unincorporated organization, trust or Joint Venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any Insolvency or Liquidation Proceeding,
whether or not allowed or allowable as a claim in any such Insolvency or Liquidation Proceeding.
“Place of Payment” means a city or any political subdivision thereof in which any Paying Agent appointed pursuant to Article III is located.
“Predecessor Notes” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of
this definition, any Note authenticated and delivered under Section 306 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions
or upon liquidation.
“Purchase Money Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary incurred for the purpose of financing or refinancing all or any part of the purchase
price or the cost of an Asset Acquisition or the acquisition, lease, construction, installation, repair or improvement of any property or assets (whether through the direct purchase of assets or the Capital Stock of any Person owning such
assets); provided that the aggregate principal amount of such Indebtedness does not exceed such purchase price or cost of such acquisition, lease, construction, installation, repair or improvement.
“QIB” means a “qualified institutional buyer,” as that term is defined in Rule 144A.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
“Qualifying Indebtedness” means any (i) Indebtedness under any Credit Facilities (other than Permitted Indebtedness) incurred pursuant to Section 407, (ii) Indebtedness
under any Credit Facilities incurred pursuant to clause (2), (13) or (18) of the definition of “Permitted Indebtedness”, (iii) Indebtedness under syndicated credit facilities and (iv) Capital Markets Indebtedness.
“Rating Agencies” means Moody’s, S&P and Fitch; provided that if S&P, Moody’s, Fitch or any Successor Rating Agency (as defined
below) shall cease to be in the business of providing rating services for debt securities generally, the Company shall be entitled to replace any such Rating Agency or Successor Rating Agency, as the case may be, which has ceased to be in
the business of providing rating services for debt securities generally with a security rating agency which is in the business of providing rating services for debt securities generally and which is nationally recognized in the United
States (such rating agency, a “Successor Rating Agency”).
“Receivables Assets” means any receivables, royalty, patent or other revenue streams and other rights to payment and related assets (whether now existing or arising or acquired in
the future), all collateral securing such receivables, revenue streams or other rights of payment, all contracts and contract rights and all guarantees or other obligations in respect of such receivables, revenue streams or other rights
of payment, all proceeds of such receivables, revenue streams or other rights of payment and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily
granted in connection with Permitted Receivables Financing and which, in each case, are sold, conveyed, assigned or otherwise transferred or in which a security interest is granted by the Company or any of its Restricted Subsidiaries to
an Accounts Receivable Entity that in turn sells, conveys, assigns, grants a security interest in or otherwise transfers such Receivables Assets to a Person that is not a Restricted Subsidiary of the Company.
“Redemption Date,” when used with respect to any Note to be redeemed or purchased, means the date fixed for such redemption or purchase by or pursuant to this Indenture and the
Notes.
“Refinance” means in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” means any Refinancing by the Company or any Restricted Subsidiary of Indebtedness incurred in accordance with Section 407 (other than pursuant to
clause (2), (13), (14), (15), (16), (19)or (20) of the definition of “Permitted Indebtedness”), in each case that does not: (1) result in an increase in the aggregate principal amount of any Indebtedness of such Person as of the date of the
completion of all components of such proposed Refinancing (provided such completion occurs within 60 days of the initial incurrence of Indebtedness in connection with such Refinancing) plus the amount of any accrued and unpaid interest and any premium reasonably necessary to Refinance such Indebtedness and all other Related Costs; or (2) create Indebtedness with (A) a Weighted Average
Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier than the final maturity of the Indebtedness being Refinanced;
provided that (x) if such Indebtedness being Refinanced is Indebtedness of the Company and/or a Guarantor, then such Refinancing Indebtedness shall be Indebtedness solely of the Company and/or
such Guarantor and (y) if such Indebtedness being Refinanced is subordinate or junior to the Notes or any Subsidiary Guarantee, then such Refinancing Indebtedness shall be subordinate to the Notes or such Subsidiary Guarantee, as the case
may be, at least to the same extent and in the same manner as the Indebtedness being Refinanced.
“Regular Record Date” for the interest payable on any applicable Interest Payment Date means April 1 and October 1 (whether or not a Business Day) immediately preceding such Interest
Payment Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form attached hereto as Exhibit C.
“Related Costs” means the aggregate amount of accrued and unpaid interest, and premiums if any (including, but limited to, redemption or tender premiums) on the Indebtedness being
Refinanced and any and all fees, underwriting discounts, defeasance costs and other costs, fees, discounts and expenses incurred in connection with any Refinancing.
“Replacement Assets” means assets and property reasonably expected to be used in the business of the Company and/or its Restricted Subsidiaries or in a business that is the same,
similar or reasonably related thereto (including Capital Stock of a Person which becomes a Restricted Subsidiary).
“Representative” means, with respect to any Person, such Person’s designated agent.
“Resale Restriction Termination Date” means, with respect to any Note, the date that is one year (or such other period as may hereafter be provided under Rule 144 under the
Securities Act or any successor provision thereto as permitting the resale by non‑affiliates of Restricted Securities without restriction) after the later of the original issue date in respect of such Note and the last date on which the
Company or any Affiliate of the Company was the owner of such Note (or any Predecessor Note thereto).
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Restricted Security” has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to receive, at its request, and conclusively rely on an Opinion of Counsel with respect to whether any Note constitutes a Restricted Security.
“Restricted Subsidiary” means any Subsidiary of the Company that has not been designated by the Board of Directors of the Company, by a Board Resolution of the Company delivered to
the Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with Section 408. Any such Designation may be revoked by a Board Resolution of the Company delivered to the Trustee, subject to the provisions of such
covenant.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., or any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person
or to any other Person from whom funds have been or are to be advanced on the security of such property.
“Secured Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries secured by a Lien.
“Secured Notes” means the Company’s outstanding 6.75% Senior Secured Notes due 2029.
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statutes thereto, and the rules and regulations of the Commission promulgated thereunder.
“Significant Subsidiary” means any Restricted Subsidiary (or, solely for the purposes of Section 405, any Subsidiary) that satisfies the criteria for a “significant
subsidiary” set forth in Rule 1.02(w) of Regulation S-X under the Securities Act.
“Similar Business” means any business conducted by the Company and its Restricted Subsidiaries on the Issue Date or any business that is similar, reasonably related, incidental or
ancillary thereto.
“Special Purpose Entity” means any Subsidiary whose organizational documents contain restrictions on its purpose and activities intended to preserve its separateness from the
Company and/or one or more other Subsidiaries of the Company.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Specified Transaction” means, with respect to any period, any Investment, acquisition, disposition, amalgamation, merger, consolidation, reorganization, recapitalization, issuance
of Capital Stock, incurrence, issuance, assumption, repayment, Refinancing, termination, amendment or modification of Indebtedness, Restricted Payment, designation of a Restricted Subsidiary as an Unrestricted Subsidiary or of an
Unrestricted Subsidiary as a Restricted Subsidiary.
“Stated Maturity” means, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and
payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
“Subordinated Indebtedness” means Indebtedness as to which the payment of principal (and premium, if any) and interest and other payment obligations is subordinate or junior in right
of payment by its terms to the Notes or the Subsidiary Guarantees of the Company or a Guarantor, as applicable. Indebtedness shall not constitute Subordinated Indebtedness solely due to the fact that it is unsecured or secured by a Lien
that is junior to any Secured Indebtedness or does not have the benefit of any guarantees.
“Subsidiary,” with respect to any Person, means (1) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election
of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or (2) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly
or indirectly, owned by such Person.
“Subsidiary Guarantee” means the guarantee by each Guarantor of the Obligations of the Company under the Notes pursuant to this Indenture.
“Supplemental Banking Services Obligations” means obligations of the Company and its Restricted Subsidiaries in respect of working capital and long term credit agreements, bank
issued guarantees, credit facilities supporting letters of credit and/or bank issued guarantees, any arrangements relating to bilateral letters of credit (including standby and documentary letters of credit) and bank guarantees, demand
deposit and trust or operating account relationships, in each case provided by any lender (or any Affiliate thereof) under the Credit Agreement in an aggregate outstanding principal amount of up to $100.0 million at any time (subject to the
last sentence of this definition of Supplemental Banking Services Obligations). Notwithstanding the foregoing, an obligation shall constitute a Supplemental Banking Services Obligation only if the Company has designated such obligation as a
Supplemental Banking Services Obligation in an Officer’s Certificate delivered to the Trustee.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§77aaa-77bbbb) as in effect on the date of this Indenture, except as otherwise provided herein.
“Transaction Date” has the meaning set forth in the definition of Consolidated Fixed Charge Coverage Ratio.
“Treasury Rate” means, with respect to a redemption date, the weekly average for each Business Day during the most recent week that has ended at least two Business Days prior to the
redemption date of 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) (or, if such
Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to October 15, 2027; provided, however, that if the period from the redemption date to such date 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 Stated Treasury securities for which such yields are given, except that if the period from the redemption
date to such date is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
“Trust Officer” means any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons
who at the time shall be such corporate trust officers or any other officer of the Trustee to whom a corporate trust matter relating to this Indenture is referred because of his or her knowledge of and familiarity with the particular
subject, in each case, who shall have direct responsibility for the administration of this Indenture.
“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
“UCC” means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.
“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such pursuant to and in compliance with Section 408. Any such designation may be revoked by a
Board Resolution of the Company delivered to the Trustee, subject to the provisions of such covenant.
“U.S. Government Obligations” means securities that are (i) direct obligations of the United States for the timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that,
in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository 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 depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation
or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (A) the sum of the total of the products obtained by
multiplying (I) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (II) the number of years (calculated to the
nearest one-twelfth) which will elapse between such date and the making of such payment by (B) the then outstanding aggregate principal amount of such Indebtedness.
“Wholly Owned Domestic Restricted Subsidiary” means a Wholly Owned Restricted Subsidiary that is also a Domestic Restricted Subsidiary.
“Wholly Owned Restricted Subsidiary” of the Company means any Restricted Subsidiary of which all the outstanding voting securities (other than in the case of a Foreign Restricted
Subsidiary, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by the Company or any other Wholly Owned Restricted Subsidiary.
Section 102. Other Definitions.
Term
|
Defined in
Section
|
“Act”
|
108
|
“Affiliate Transaction”
|
412
|
“Agent Members”
|
312
|
“Authentication Order”
|
303
|
“Certificate of Beneficial Ownership”
|
313
|
“Change of Control Offer”
|
415
|
“Change of Control Payment Date”
|
415
|
“Consolidated Tax Payments”
|
412
|
“Covenant Defeasance”
|
1203
|
“Defaulted Interest”
|
307
|
“Defeased Notes”
|
1201
|
“Designation”
|
408
|
“Designation Amount”
|
408
|
“Event of Default”
|
601
|
“Excess Proceeds”
|
411
|
“Excess Proceeds Offer”
|
411
|
“Excess Proceeds Trigger Date”
|
411
|
“Expiration Date”
|
108
|
“Foreign Disposition”
|
411
|
“Global Notes”
|
201
|
“Guarantee”
|
414
|
“Guaranteed Indebtedness”
|
414
|
“incur”
|
407
|
“Interest Payment Date”
|
301
|
“Legal Defeasance”
|
1202
|
“Note Register” and “Note Registrar”
|
305
|
“Notice of Default”
|
702
|
“payment default”
|
601
|
“Permitted Payments”
|
409
|
“Physical Notes”
|
201
|
“Private Placement Legend”
|
203
|
“Regulation S Global Notes”
|
201
|
“Regulation S Note Exchange Date”
|
313
|
“Regulation S Physical Notes”
|
201
|
“Reference Date”
|
409
|
“Restricted Payment”
|
409
|
“Reversion Date”
|
416
|
“Revocation”
|
408
|
“Rule 144A Global Notes”
|
201
|
“Rule 144A Physical Notes”
|
201
|
“Secured Notes Excess Proceeds”
|
411
|
“Secured Notes Excess Proceeds Offer”
|
411
|
“Subsidiary Guaranteed Obligations”
|
1301
|
“Suspended Covenants”
|
416
|
“Suspension Date”
|
416
|
“Suspension Period”
|
416
|
“Surviving Entity”
|
501
|
Section 103. Rules of Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Indenture have the meanings assigned to them in this Indenture;
(2) “or” is not exclusive;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision;
(5) all references to “$” or “dollars” shall refer to the lawful currency of the United States of
America;
(6) the words “include,” “included” and “including,” as used herein, shall be deemed in each case
to be followed by the phrase “without limitation,” if not expressly followed by such phrase or the phrase “but not limited to”;
(7) words in the singular include the plural, and words in the plural include the singular;
(8) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from time to time;
(9) any reference to a Section, Article or clause refers to such Section, Article or clause of this Indenture; and
(10) notwithstanding any provision of this Indenture, no provision of the TIA shall apply or be incorporated by reference into this Indenture or the Notes, except as specifically set
forth in this Indenture.
Section 104. [Reserved].
Section 105. [Reserved].
Section 106. Compliance Certificates and Opinions. Upon any application or request by the Company or by any other obligor upon the Notes (including any Guarantor) to the Trustee
to take any action under any provision of this Indenture, the Company or such other obligor (including any Guarantor), as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under this Indenture.
Each such certificate or opinion shall be given in the form of one or more Officer’s Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of this Indenture.
Notwithstanding the foregoing, in the case of any such request or application as to which the furnishing of any Officer’s Certificate or Opinion of Counsel is specifically required by any provision of this Indenture relating to such
particular request or application, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 406) shall
include:
(1) a statement that the individual signing such certificate or opinion has read such covenant or condition, as applicable,
and the definitions herein relating thereto;
(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 individual, he or she 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, as applicable, has been complied with; and
(4) a statement as to whether, in the opinion of such individual, such condition or covenant, as applicable, has been
complied with.
Section 107. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows
that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an Officer or Officers to the effect that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 108. Acts of Noteholders; Record Dates. (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; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company, as the case may be. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 701) conclusive in favor of the Trustee, the Company, and any other obligor upon the Notes, if made in the manner provided in this Section 108.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved 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. Where such execution is by an officer of a
corporation or a member of a partnership or other legal entity other than an individual, on behalf of such corporation or partnership or entity, such certificate or affidavit shall also constitute sufficient proof of such Person’s
authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(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 the Holder of every Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, the Company or any other obligor upon the Notes in reliance thereon, whether or not notation of such action is
made upon such Note.
(e) (i) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes, provided that the Company may not set a
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 the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date (or their duly designated proxies), and no other Holders, shall be entitled to take the relevant action, whether or not such Persons remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record
date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 110.
(ii) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the
giving or making of (A) any Notice of Default, (B) any declaration of acceleration referred to in Section 602, (C) any request to institute proceedings referred to in Section 607(ii) or (D) any direction referred to in Section
612, in each case with respect to Notes. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes 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 taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. 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 Expiration Date to be given to the Company in writing and to each Holder of Notes in the manner set forth in Section 110.
(iii) With respect to any record date set pursuant to this Section 108, the party hereto that sets such record dates may designate any
day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed
new Expiration Date is given to the Company or the Trustee, whichever such party is not setting a record date pursuant to this Section 108(e) in writing, and to each Holder of Notes in the manner set forth in Section 110, on
or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 108, the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder 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.
(v) Without limiting the generality of the foregoing, a Holder, including the 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 the Depositary, as the
Holder of a Global Note, may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(vi) 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 the Depositary entitled under the procedures of such depositary 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. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such persons, shall be entitled to make, give or take such request,
demand, authorization direction, notice consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be
valid or effective if made, given or taken more than 90 days after such record date.
Section 109. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by any other obligor upon the Notes shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at 535 Griswold Street, Suite 550, Detroit, MI 48226; Fax No.: (313) 963-9428; Attention: Global Corporate Trust Services or at any other address furnished in
writing to the Company by the Trustee,
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed,
first class postage prepaid, or delivered by electronic transmission, to the Company at 3000 University Drive, Auburn Hills, Michigan 48326, Attention: General Counsel (email: rboyle@phinia.com) or at any other physical or electronic
address furnished in writing to the Trustee by the Company,
(3) the Company or the Trustee, by notice to the others, may designate additional or different addresses for subsequent
notices or communications.
Section 110. Notices to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, or by overnight air courier guaranteeing next day delivery, to each Holder, at such Holder’s address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders.
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.
In case, by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail notice of any event as required by any provision of this
Indenture, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note 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 customary procedures of such Depositary (including delivery by electronic mail).
Section 111. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 112. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its respective successors and assigns, whether so expressed or
not. All agreements of the Trustee in this Indenture shall bind their respective successors.
Section 113. Separability Clause. 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 114. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 115. Governing Law; Jurisdiction. THIS INDENTURE, THE NOTES AND ANY SUBSIDIARY GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company and the Guarantors agree that any suit, action or proceeding against the Company or any Guarantor brought by any Holder or the Trustee arising out of or based upon this
Indenture, the Subsidiary Guarantees or the Notes may be instituted in any state or federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in
connection with this Indenture, the Subsidiary Guarantees or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of
venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company and the Guarantors agree that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Company or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Company or the Guarantors, as the case may be, are subject by a suit upon
such judgment.
Section 116. Waiver of Trial by Jury. Each of the parties hereto hereby waives the right to trial by jury with respect to any litigation directly or indirectly arising out of,
under or in connection with this Indenture.
Section 117. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal and premium (if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on such payment for the intervening period.
Section 118. No Personal Liability of Directors, Managers, Officers, Employees, Incorporators and Stockholders. No past, present or future director, manager, officer, employee,
incorporator, member, partner or stockholder of the Company, any Guarantor or any Subsidiary of any thereof, in their respective capacities as such, shall have any liability for any obligation of the Company or any Guarantor under this
Indenture, the Notes and the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, any such obligation or its creation. Each Noteholder, by accepting the Notes, waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 119. Exhibits and Schedules. All exhibits and schedules attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.
Section 120. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but
one and the same instrument. Delivery of an executed counterpart of this Indenture and any document delivered in connection with this Indenture by facsimile, electronically in portable document format (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or in any other format
will be effective as delivery of a manually executed counterpart. The Company agrees to assume all risks arising out of the use of using electronic signatures and electronic methods to submit communications to the Trustee, including without
limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 121. Force Majeure. 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, epidemics or pandemics, nuclear or natural
catastrophes or acts of God, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services and the unavailability of the Federal Reserve Bank wire, telex or other wire or communication
facility (it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances).
Section 122. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in
order to help fight the funding of terrorism and money laundering, 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 will provide the Trustee (acting in any capacity hereunder) with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 123. Financial Calculations for Limited Condition Transactions. When calculating the availability under any basket or ratio under this Indenture, in each case in
connection with a Limited Condition Transaction, the date of determination of such basket or ratio and of any Default or Event of Default shall, at the option of the Company, be the LCT Determination Date and such baskets or ratios shall
be calculated on a pro forma basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of
Indebtedness and the use of proceeds therefrom) as if they occurred at the beginning of the applicable reference period for purposes of determining the ability to consummate any such Limited Condition Transaction (and not for purposes of
any subsequent availability of any basket or ratio), and, for the avoidance of doubt, (x) if any of such baskets or ratios are exceeded as a result of fluctuations in such basket or ratio (including due to fluctuations in the Consolidated
EBITDA or Consolidated Net Tangible Assets of the Company or the target company) subsequent to such LCT Determination Date and at or prior to the consummation of the relevant Limited Condition Transaction, such baskets or ratios will not be
deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted under this Indenture and (y) such baskets or ratios shall not be tested at the time of
consummation of such Limited Condition Transaction or related transactions; provided, further, that if the Company elects to have such determinations occur
at the LCT Determination Date, then any such transactions (including any incurrence of Indebtedness and the use of proceeds therefrom) shall be deemed to have occurred on the LCT Determination Date thereafter for purposes of calculating any
baskets or ratios under this Indenture after the date LCT Determination Date and before the consummation of such Limited Condition Transaction.
ARTICLE II
NOTE FORMS
Section 201. Forms Generally. The Initial Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in
this Article II and Exhibit A attached hereto (as such forms may be modified in accordance with Section 301). Any Additional Notes and the Trustee’s certificate of authentication relating thereto shall be in
substantially the forms set forth, or referenced, in this Article II and Exhibit A attached hereto (as such forms may be modified in accordance with Section 301). Exhibit A is hereby incorporated in and
expressly made a part of this Indenture. The Notes may have such appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange
rule or depositary rule or usage, agreements to which the Company is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officers of the Company executing such Notes, as evidenced by such
execution (provided always that any such notation, legend, endorsement, identification or variation is in a form acceptable to the Company). Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. For
the avoidance of doubt, no Opinion of Counsel shall be required on the Issue Date for the Trustee’s authentication of the Initial Notes.
Notes offered and sold to persons reasonably believed to be QIBs in reliance on Rule 144A shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one
or more permanent global Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301), except as otherwise permitted herein. Such Global Notes shall be referred
to collectively herein as the “Rule 144A Global Notes,” and shall be deposited with the Trustee, as custodian for the Depositary or its nominee, for credit to an account of an Agent Member, and shall be duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Company otherwise notifies the Trustee in writing, be issued in the
form of one or more permanent global Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301), except as otherwise permitted herein. Such Global Notes shall
be referred to herein as the “Regulation S Global Notes,” and shall be deposited with the Trustee, as custodian for the Depositary or its nominee for the accounts of designated Agent Members holding on behalf of Euroclear or
Clearstream and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Regulation S Global Note may from time to time be increased or decreased by adjustments made
in the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
Subject to the limitations on the issuance of certificated Notes set forth in Sections 312 and 313, Notes issued pursuant to Section 305 in exchange for or upon
transfer of beneficial interests (x) in a Rule 144A Global Note shall be in the form of permanent certificated Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section
301) (the “Rule 144A Physical Notes”) or (y) in a Regulation S Global Note (if any) shall be in the form of permanent certificated Notes substantially in the form attached hereto as Exhibit A (as such form may be
modified in accordance with Section 301) (the “Regulation S Physical Notes”), respectively, as hereinafter provided.
The Rule 144A Physical Notes and Regulation S Physical Notes shall be construed to include any certificated Notes issued in respect thereof pursuant to Section 304, 305, 306
or 1008, and the Rule 144A Global Notes and Regulation S Global Notes shall be construed to include any global Notes issued in respect thereof pursuant to Section 304, 305, 306 or 1008. The Rule 144A
Physical Notes and the Regulation S Physical Notes, together with any other certificated Notes issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “Physical Notes.” The Rule 144A
Global Notes and the Regulation S Global Notes, together with any other global Notes that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “Global Notes.”
Section 202. Form of Trustee’s Certificate of Authentication. The Notes will have endorsed thereon a Trustee’s certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
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as Trustee
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By:
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Authorized Officer
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Dated:
If an appointment of an Authenticating Agent is made pursuant to Section 714, the Notes may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an
alternative certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
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as Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Officer
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Dated:
Section 203. Restrictive and Global Note Legends. Each Global Note and Physical Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the following
legend set forth below (the “Private Placement Legend”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 313(4):
“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A “U.S. PERSON” (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
Each Global Note, whether or not an Initial Note, shall also bear the following legend on the face thereof:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 312 AND 313 OF THE INDENTURE (AS DEFINED HEREIN).”
Each Regulation S Global Note shall also bear the following legend on the face thereof:
“BY ITS ACQUISITION THEREOF, ANY HOLDER OF BENEFICIAL OWNERSHIP INTERESTS HEREIN REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS
ACQUIRING SUCH BENEFICIAL OWNERSHIP INTERESTS IN THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN ANY OTHER NOTE REPRESENTING AN INTEREST IN
THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES
ACT). DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE MAY NOT BE SOLD, PLEDGED OR TRANSFERRED TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON.”
ARTICLE III
THE NOTES
Section 301. General Terms; Additional Notes. All Notes will vote (or consent) as a class with the other Notes and otherwise be treated as a single class of Notes for all
purposes of this Indenture. Each Note will bear interest at a rate of 6.625% per annum from the Issue Date or from the most recent date to which interest has been paid or provided for, payable semi-annually on April 15 and October 15 of
each year (each such date, an “Interest Payment Date”), commencing April 15, 2025, to Holders of record as of the close of business on the April 1 and October 1, whether or not a Business Day, immediately preceding each Interest
Payment Date.
Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuer 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 as the Initial Notes other than with respect to the date of issuance and, if
applicable, original interest accrual date and original interest payment date; provided that the Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with Section
407 hereof. Any Additional Notes may be issued with the benefit of an indenture supplemental to this Indenture; provided, further, however, that in the event any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such non-fungible notes will be issued with a separate CUSIP number or ISIN
so they are distinguishable from the Initial Notes.
The terms and provisions contained in the Notes will 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.
Section 302. Denominations. The Notes shall be issuable only in fully registered form, without coupons, and only in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 303. Execution, Authentication and Delivery and Dating. The Notes shall be executed on behalf of the Company by one Officer of the Company. The signature of any such
Officer on the Notes may be manual, facsimile or electronic.
Notes bearing the manual, facsimile or other electronic signature of an individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that such individual
has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication; and the
Trustee shall authenticate and deliver (i) Initial Notes for original issue in the aggregate principal amount not to exceed $450.0 million and (ii) subject to Section 407, Additional Notes from time to time for original issue in
aggregate principal amounts specified by the Company (which shall have identical terms as the Initial Notes, other than with respect to the date of issuance and, if applicable, original interest accrual date and original interest payment
date), in each case specified in clauses (i) and (ii) above, upon a written order of the Company (an “Authentication Order”). Such Authentication Order shall specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar identification numbers of such Notes, if any, whether the Notes are to be Initial Notes or Additional Notes, the issue price (in the case of Additional
Notes) and whether the Notes are to be issued as one or more Global Notes or Physical Notes and such other information as the Company may include or the Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Section 304. Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and upon receipt of an Authentication Order the Trustee 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. If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute and upon receipt of an Authentication Order the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.
Section 305. Note Registrar and Paying Agent. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, such Company shall
provide for the registration of Notes and of transfers of Notes. The Company may have one or more co-registrars. The term “Note Registrar” includes any co-registrars.
The Company initially appoints the Trustee as “Note Registrar” and “Paying Agent” in connection with the Notes, until such time as it has resigned or a successor has been appointed. The
Company may have one or more additional paying agents, and the term “Paying Agent” shall include any additional Paying Agent. The Company may change the Paying Agent or Note Registrar without prior notice to the Holders of Notes.
The Company may enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture. Any such agency 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 such agent. If the Company fails to appoint or maintain a Note Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 707. The Company or any Wholly Owned Restricted Domestic Subsidiary of the Company may act as Paying Agent (except for purposes of Section 1103 or Section 1205) or Note
Registrar. The Trustee shall automatically be the Paying Agent upon any Event of Default under clause (vii) or (viii) of Section 601.
Upon surrender for transfer of any Note at the office or agency of the Company in a Place of Payment, in compliance with all applicable requirements of this Indenture and applicable law,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.
All Notes issued upon any transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Notes surrendered upon such transfer or exchange.
Every Note presented or surrendered for transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company duly executed,
by the Holder thereof or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any registration, transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental
charge that may be imposed in connection therewith.
The Company shall not be required (i) to issue, transfer or exchange any Note during a period beginning at the opening of business 15 Business Days before the day of the delivery of a
notice of redemption (or purchase) of Notes selected for redemption (or purchase) under Section 1004 and ending at the close of business on the day of such delivery or (ii) to transfer or exchange any Note so selected for redemption
(or purchase) in whole or in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes. If a mutilated Note is surrendered to the Note Registrar or if the Holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) notifies the Company or
the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Note Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Company
or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8‑303 of the Uniform Commercial Code and (c) satisfies any other reasonable requirements of the Company. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, a Paying Agent and the Note Registrar, from any loss that
any of them may suffer if a Note is replaced.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and ratably with any and all other Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.
Section 307. Payment of Interest Rights Preserved. Interest on any Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date.
Any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to
be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee and Paying Agent
in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and the Company shall deposit with the Trustee or Paying Agent 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 or Paying Agent 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 clause (1). Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record
Date and cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, or delivered to each Holder at such Holder’s address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so delivered, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange.
Subject to the foregoing provisions of this Section 307, each Note delivered under this Indenture upon 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, that were carried by such other Note.
Section 308. Persons Deemed Owners. The Company, any Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name any Note is
registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 307) interest on, such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Company, any Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.
Section 309. Cancellation. All Notes surrendered for payment, redemption, transfer, exchange or conversion shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 309,
except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures (subject to the record retention requirements of the Exchange Act).
Section 310. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers, ISINs, Etc. The Company in issuing Notes may use “CUSIP” numbers, ISINs and “Common Code” numbers (if then generally in use), and if so, the Trustee
may use the CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that the
Trustee is not liable for the accuracy of any CUSIP, ISIN or Common Code printed on any Note, notice or elsewhere; any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the
notice or on the Notes; that reliance may be placed only on the other identification numbers printed on the Notes; and that any redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly
advise the Trustee in writing of any change in the ISINs and “Common Code” numbers.
Section 312. Book-Entry Provisions for Global Notes. (a) Each Global Note initially shall (i) be registered in the name of the Depositary for such Global Note or the nominee of
such Depositary, in each case for credit to the account of an Agent Member, and (ii) be delivered to the Trustee as custodian for such Depositary. None of the Company, any agent of the Company or the Trustee shall have any responsibility
or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(b) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the
Depositary, or its custodian, or under such Global Notes. The Depositary may be treated by the Company, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Notes, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Note. The Holder of a Global Note may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a Global Note may not be transferred or exchanged for Physical Notes unless (i) the Company has consented thereto in writing, or such transfer or exchange is made
pursuant to the next sentence, and (ii) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Section 305 and Section 313. Subject to the limitation on
issuance of Physical Notes set forth in Section 313(3), Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Note, if (i) the Depositary notifies the Company
at any time that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed within 120 days; (ii) the Depositary ceases to be registered as a “Clearing Agency” under the Exchange Act
and a successor depositary is not appointed within 120 days; (iii) the Company, at its option, notifies the Trustee that it elects to cause the issuance of Physical Notes; or (iv) an Event of Default shall have occurred and be continuing
with respect to the Notes and the Trustee has received a written request from the Depositary to issue Physical Notes.
(d) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners for Physical Notes pursuant to Section 312(c),
the Note Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the beneficial interest in the Global Note being transferred, and the Company shall execute,
and upon receipt of an Authentication Order the Trustee shall authenticate and deliver, one or more Physical Notes of like principal amount of authorized denominations.
(e) In connection with a transfer of an entire Global Note to beneficial owners for Physical Notes pursuant to Section 312(c), the applicable Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute, and upon receipt of an Authentication Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, in exchange for
its beneficial interest in the applicable Global Note, an equal aggregate principal amount of Rule 144A Physical Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes (in the case of any Regulation S Global Note),
as the case may be, of authorized denominations.
(f) The transfer and exchange of a Global Note or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth in Section 313) and the procedures therefor of the Depositary. Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in a
different Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it remains such an interest. A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in accordance with
the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Note. Subject to Section 313, the Note Registrar shall, in
accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in such Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(g) Any Physical Note delivered in exchange for an interest in a Global Note pursuant to Section 312(c) shall, unless such exchange is made on or after the Resale
Restriction Termination Date applicable to such Note and except as otherwise provided in Section 203 and Section 313, bear the Private Placement Legend.
(h) Notwithstanding the foregoing, through the Restricted Period, a beneficial interest in a Regulation S Global Note may be held only through designated Agent Members holding on
behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 313.
(i) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary. The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to
any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner, or other Person (other than the Depositary) of any notice (including any notice of redemption or purchase) or the payment of
any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members,
participants, and any beneficial owners.
Section 313. Special Transfer Provisions.
(1) Transfers to Non‑U.S. Persons. The following provisions shall apply with respect to the registration of any
proposed transfer of a Note that is a Restricted Security to any Non‑U.S. Person: The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305) and,
(a) if (x) such transfer is after the relevant Resale Restriction Termination Date with respect to such Note or (y) the
proposed transferor has delivered to the Note Registrar and the Company and the Trustee a Regulation S Certificate and, unless otherwise agreed by the Company, an Opinion of Counsel, certifications and other information satisfactory to the
Company, and
(b) if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Note,
upon receipt by the Note Registrar and the Company and the Trustee of (x) the certificate, opinion, certifications and other information, if any, required by clause (a) above and (y) written instructions given in accordance with the
procedures of the Note Registrar and of the Depositary;
whereupon (i) the Note Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Note) a decrease in the principal amount of the
relevant Global Note in an amount equal to the principal amount of the beneficial interest in the relevant Global Note to be transferred, and (ii) either (A) if the proposed transferee is or is acting through an Agent Member holding a
beneficial interest in a relevant Regulation S Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal
amount of the beneficial interest being so transferred or (B) otherwise the Company shall execute and (upon receipt of an Authentication Order) the Trustee shall authenticate and deliver one or more Physical Notes of like amount.
(2) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed
transfer of a Note that is a Restricted Security to a QIB (excluding transfers to Non‑U.S. Persons): The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section
305) and,
(a) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such
Note stating, or has otherwise certified to the Note Registrar and the Company and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided
for on the form of such Note stating, or has otherwise certified to Note Registrar and the Company and the Trustee in writing, that it is purchasing such Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Note to be transferred consists of a Physical Note that
after transfer is to be evidenced by an interest in a Global Note or consists of a beneficial interest in a Global Note that after the transfer is to be evidenced by an interest in a different Global Note, upon receipt by the Note Registrar
of written instructions given in accordance with the Depositary’s and the Note Registrar’s procedures, whereupon the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee
Global Note in an amount equal to the principal amount of the Physical Note or such beneficial interest in such transferor Global Note to be transferred, and the Trustee shall cancel the Physical Note so transferred or reflect on its books
and records the date and a decrease in the principal amount of such transferor Global Note, as the case may be.
(3) Limitation on Issuance of Physical Notes. No Physical Note shall be exchanged for a beneficial interest in any
Global Note, except in accordance with Section 312 and this Section 313.
A beneficial owner of an interest in a Regulation S Global Note shall not be permitted to exchange such interest for a Physical Note until a date, which must be after the end of the
Restricted Period, on which the Company receives a certificate of beneficial ownership substantially in the form attached hereto as Exhibit B from such beneficial owner (a “Certificate of Beneficial Ownership”). Such date,
as it relates to a Regulation S Global Note, is herein referred to as the “Regulation S Note Exchange Date.”
(4) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Note Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Note Registrar shall deliver only Notes that bear
the Private Placement Legend unless (i) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Notes, (ii) upon written request of the Company after there is delivered to the Note Registrar an
Opinion of Counsel (which opinion and counsel are satisfactory to the Company) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the
Securities Act, (iii) with respect to a Regulation S Global Note (on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note) or Regulation S Physical Note, in each case with the agreement of the Company,
or (iv) such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act.
(5) Other Transfers. The Note Registrar shall effect and register, upon receipt of a written request from the
Company to do so, a transfer not otherwise permitted by this Section 313, such registration to be done in accordance with the otherwise applicable provisions of this Section 313, upon the furnishing by the proposed
transferor or transferee of a written Opinion of Counsel (which opinion and counsel are satisfactory to the Company) to the effect that, and such other certifications or information as the Company may require (including, in the case of a
transfer to an Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D promulgated under the Securities Act), a certificate substantially in the form attached hereto as Exhibit E) to confirm that, the
proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than as provided in this Section 313. A beneficial interest in a Global Note that is a Restricted Security may not
be exchanged for a beneficial interest in another Global Note other than through a transfer in compliance with this Section 313.
(6) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.
The Note Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 312 or this Section 313 (including all Notes
received for transfer pursuant to this Section 313). The Company shall have the right to require the applicable Note Registrar to deliver to the Company, at the Company’s expense, copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to the Note Registrar.
In connection with any transfer of any Note, the Trustee, the Note Registrar and the Company shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume
the correctness of, and shall be fully protected in relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise) received from any Holder
and any transferee of any Note regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Note and any other facts and circumstances related to such transfer.
Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Note Registrar shall be responsible for ascertaining whether any transfer complies with the
registration provisions of or exemptions from the Securities Act or applicable state securities laws.
ARTICLE IV
COVENANTS
Section 401. Payment of Principal, Premium and Interest. The Company shall duly and punctually pay the principal of (and premium, if any) and interest on the Notes in accordance
with the terms of such Notes and this Indenture. Principal amount (and premium, if any) and interest on the Notes shall be considered paid on the date due if the Company shall have deposited with the Paying Agent (if other than the Company
or another Wholly Owned Restricted Domestic Subsidiary of the Company) as of 11:00 a.m. New York City time on the due date money in immediately available funds and designated for and sufficient to pay all principal amount (and premium, if
any) and interest then due. At the option of the Company, payment of interest on such Note may be made through the Paying Agent by wire transfer of immediately available funds to the account designated to the Company by the Person entitled
thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.
Section 402. Maintenance of Office or Agency. (a) The Company shall maintain in the United States an office or agency where such Notes may be presented or surrendered for
payment, where such Notes may be surrendered for transfer or exchange and where notices and demands to or upon the Company in respect of such Notes and this Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and of any change in the location, of such office or agency. If at any time the Company shall fail to maintain such 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; provided that no service of legal process may be made against the Company or any of
Guarantors at any office of the Trustee.
(b) The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all purposes and may from time
to time rescind such designations.
The Company hereby designates the Corporate Trust Office of the Trustee, as one such office or agency of the Company in accordance with Section 305.
Section 403. Money for Payments to Be Held in Trust. If the Company shall at any time act as Paying Agent, it shall, on or before 11:00 a.m., New York City time, on each due
date of the principal of (and premium, if any) or interest on, any of such Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee in writing of its action or failure so to act.
If the Company is not acting as Paying Agent, it shall, on or prior to 11:00 a.m., New York City time, on each due date of the principal of (and premium, if any) or interest on, such Notes,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company shall promptly notify the Trustee in writing of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company shall cause any Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 403, that such Paying Agent shall:
(1) hold all sums held by it for the payment of principal of (and premium, if any) or interest on the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any such
payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the provisions of this Indenture relating to the duties,
rights and liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of such Notes, this Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of principal of (and premium, if any) or interest on any Note and remaining
unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof unless an applicable abandoned property law designates another Person, and 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 404. [Reserved].
Section 405. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, to the extent permitted by the Exchange Act, the
Company will file with the Commission, and provide to the Trustee and the Holders of the Notes, the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by
rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods required; provided, however, that
availability of the foregoing materials on the Commission’s EDGAR service shall be deemed to satisfy the Company’s delivery obligations under this provision. In the event that the Company is not permitted to file such reports, documents
and information with the Commission pursuant to the Exchange Act, the Company will nevertheless provide such Exchange Act information to the Trustee and the holders of the Notes as if the Company were subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act within the time periods required by law.
(b) The Company will be deemed to have furnished the reports referred to in Section 405(a) if the Company has filed reports containing such information with the Commission.
The Trustee shall have no duty to monitor whether any such filings have been made. The Trustee shall have no duty to review or analyze reports delivered to it. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including 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 Certificate).
(c) If the Company has designated any of its Subsidiaries as an Unrestricted Subsidiary, and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken
together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by Section 405(a) will include a reasonably detailed presentation, either on the face
of the financial statements or in the footnotes to the financial statements, or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company
and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
(d) To the extent that any reports or other information is not furnished within the time periods specified above and such reports or other information is subsequently furnished
prior to the time such failure results in an Event of Default, the Company will be deemed to have satisfied their obligations with respect thereto and any Default with respect thereto shall be deemed to have been cured. Notwithstanding
anything herein to the contrary, the Company will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 601(iii) until 90 days after the date any report hereunder is due.
Section 406. Statement as to Default. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company commencing with the Company’s
fiscal year ending December 31, 2024, an Officer’s Certificate to the effect that to the best knowledge of the signer thereof (on behalf of the Company) the Company is or is not in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture applicable to the Company (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which such signer may have knowledge.
Section 407. Limitation on Incurrence of Additional Indebtedness. (a) The Company will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (other than Permitted Indebtedness);
provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any
such Indebtedness the Company and any Restricted Subsidiary may incur Indebtedness (including, without limitation, Acquired Indebtedness) if on the date of the incurrence of such Indebtedness, after giving pro
forma effect to the incurrence and the application of the proceeds thereof, the Consolidated Fixed Charge Coverage Ratio of the Company would be greater than 2.0 to 1.0; provided, further, that the aggregate principal amount of Indebtedness (including, without limitation, Acquired Indebtedness) incurred pursuant to this Section 407(a) by Restricted Subsidiaries that are
not Guarantors shall not exceed, together with the amount of Acquired Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to clause (18) of the definition of “Permitted Indebtedness”, the greater of (i) $300.0
million and (ii) 9.5% of Consolidated Net Tangible Assets at the time of incurrence.
(b) No Indebtedness incurred pursuant to the Consolidated Fixed Charge Coverage Ratio test of Section 407(a) (including, without limitation, Indebtedness under the Credit
Agreement) shall reduce the amount of Indebtedness which may be incurred pursuant to any clause of the definition of “Permitted Indebtedness” (including without limitation, Indebtedness under the Credit Agreement pursuant to clause (2) of
the definition of “Permitted Indebtedness”).
(c) The Company and the Guarantors will not incur or suffer to exist any Indebtedness that is subordinated in right of payment to any other Indebtedness of the Company or the
Guarantors unless such Indebtedness is at least equally subordinated in right of payment to the Notes and any Subsidiary Guarantee. For the avoidance of doubt, no Indebtedness of the Company or any Guarantor will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority or by virtue of
structural subordination.
(d) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Capital Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Capital Stock or Preferred Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Capital Stock or Preferred Stock for purposes of this Section 407; provided, in each such case, that the amount thereof is included in
Consolidated Fixed Charges of the Company as accrued.
(e) For purposes of determining compliance with this Section 407, in the event that an item of Indebtedness meets the criteria of more than one of the categories of the
definition of “Permitted Indebtedness” or is entitled to be incurred pursuant to Section 407(a), the Company, in its sole discretion, will divide, classify or reclassify, and may later divide, classify or reclassify, such item of
Indebtedness (or any portion thereof) in any manner that complies with Section 407; provided that all Indebtedness outstanding under the Credit Agreement and the Secured Notes on the Issue
Date shall be treated as incurred on the Issue Date under clause (2) of the definition of “Permitted Indebtedness” and may not later be reclassified provided,
further, that (if the Company shall so determine) any Indebtedness incurred pursuant to any clause of the definition of “Permitted Indebtedness” (except as provided in the immediately preceding proviso) shall cease to be deemed
outstanding for purposes of any such clause but shall instead be deemed incurred for the purposes of Section 407(a) from and after the first date on which the Company or any Restricted Subsidiary could have incurred such
Indebtedness under Section 407(a) without reliance on such clause. In addition, in the event an item of Indebtedness (or any portion thereof), a Restricted Payment, Investments and/or a Lien (or any portion thereof) is incurred or
issued pursuant to the definition of “Permitted Indebtedness,” “Permitted Payments,” “Permitted Investments” and/or “Permitted Liens” (other than in reliance on an applicable leverage ratio) on the same date that an item of Indebtedness (or
any portion thereof), Restricted Payments, Investments and/or a Lien (or any portion thereof) is incurred or issued under Section 407(a) or an applicable leverage ratio within the definition of “Permitted Indebtedness,” “Permitted
Payments,” “Permitted Investments” and/or “Permitted Liens,” then the Consolidated Fixed Charge Coverage Ratio or applicable leverage ratio will be calculated with respect to such incurrence or issuance under Section 407(a) or the
applicable clause of the definition of “Permitted Indebtedness” without regard to any concurrent incurrence under the definition of “Permitted Indebtedness” (other than in reliance on an applicable leverage ratio).
(f) In addition, for purposes of determining compliance with this Section 407, (x) if any Indebtedness is incurred to Refinance any Indebtedness initially incurred (or,
Indebtedness incurred to Refinance any Indebtedness initially incurred) in reliance on any provision of this Section 407 measured by reference to a percentage of Consolidated Net Tangible Assets and such Refinancing would cause the
percentage of Consolidated Net Tangible Assets restriction to be exceeded if calculated based on Consolidated Net Tangible Assets on the date of such Refinancing, such percentage of Consolidated Net Tangible Assets restriction shall not be
deemed to be exceeded (and such newly incurred Indebtedness shall be deemed permitted) to the extent the principal amount of such newly incurred Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced, plus the Related Costs incurred or payable in connection with such Refinancing; (y) if any Indebtedness is incurred to Refinance any Indebtedness initially incurred (or, Indebtedness incurred to
Refinance any Indebtedness initially incurred) in reliance on any provision of this Section 407 measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such newly incurred Indebtedness shall be deemed
permitted) to the extent the principal amount of such newly incurred Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced, plus the Related Costs incurred or
payable in connection with such Refinancing; and (z) when calculating the Consolidated Fixed Charge Coverage Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio for purposes of Section 407 or Section 413,
at the option of the Company, a binding commitment to lend under a revolving credit facility (or any portion of such commitment) shall be deemed to be an incurrence of Indebtedness in the full amount of such commitment on the date that such
commitment is entered into, regardless of whether the full amount of such revolving credit facility is actually borrowed, and thereafter the amount of such commitment shall be deemed fully borrowed at all times. Guarantees of, or
obligations in respect of letters of credit relating to, Indebtedness that are otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness, provided that the incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 407.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of
revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign 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 Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 407, the maximum amount of Indebtedness that may be
incurred pursuant to this Section 407 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
Section 408. Limitation on Designations of Unrestricted Subsidiaries. (a) The Company may, on or after the Issue Date, designate any Subsidiary of the Company (other than a
Subsidiary of the Company which owns Capital Stock of a Restricted Subsidiary) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if: (1) no Default or Event of Default shall have occurred and be continuing
at the time of or after giving effect to such Designation; and (2) the Company would be permitted under this Indenture to make an Investment at the time of Designation (assuming the effectiveness of such Designation) in an amount (the “Designation
Amount”) equal to the sum of (A) the Fair Market Value of the Capital Stock of such Subsidiary owned by the Company and/or any of the Restricted Subsidiaries on such date and (B) the aggregate amount of Indebtedness of such Subsidiary
owed to the Company and the Restricted Subsidiaries on such date. In the event of any such Designation, the Company shall be deemed to have made an Investment constituting a Restricted Payment in the Designation Amount pursuant to Section
409 of this Indenture or a Permitted Investment in the Designation Amount for all purposes of this Indenture.
(b) The Company shall not, and shall not permit any Restricted Subsidiary to, at any time: (x) provide direct or indirect credit support for or a guarantee of any Indebtedness of
any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness); or (y) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary.
(c) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (“Revocation”), whereupon such Subsidiary shall then constitute a Restricted
Subsidiary, if (1) no Default or Event of Default shall have occurred and be continuing at the time and after giving effect to such Revocation; (2) all Liens and Indebtedness of such Unrestricted Subsidiaries outstanding immediately
following such Revocation would, if incurred at such time, have been permitted to be incurred for all purposes of this Indenture; and (3) such Subsidiary shall for purposes of Section 414 be treated as having then been acquired by
the Company. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Company delivered to the Trustee certifying compliance with the foregoing provisions.
(d) Notwithstanding anything to the contrary in this Section 408, (i) if any Restricted Subsidiary owns or holds any Material Intellectual Property, such Restricted
Subsidiary may not be designated as an Unrestricted Subsidiary and (ii) neither the Company nor any of its Restricted Subsidiaries shall make any Investment in, Restricted Payment to or otherwise dispose of any Material Intellectual
Property to, any Unrestricted Subsidiary (in each case, without regard to whether the Company or any Restricted Subsidiary has the right to continue to utilize any such intellectual property after such transfer); for the avoidance of
doubt, it is understood and agreed that such restriction shall not restrict any non-exclusive licenses, sublicenses or cross licenses of rights in intellectual property or any rights in intellectual property that become Material
Intellectual Property subsequent to the acquisition by an Unrestricted Subsidiary.
Section 409. Limitation on Restricted Payments. (a) The Company will not, and will not cause or permit any of the Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any distribution on or in respect of shares of its Capital Stock to holders of such Capital Stock, other than (x) dividends or distributions payable in Qualified Capital Stock of the Company and (y)
dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of
securities; (ii) subject to the last two paragraphs of this Section 409, purchase, redeem or otherwise acquire or retire for value any Equity Interests (other than, with respect to the Company, any Permitted Convertible
Indebtedness, any Permitted Bond Hedge Transactions or any Permitted Warrant Transactions) of the Company, including in connection with any merger or consolidation; (iii) make any principal payment on, or purchase, redeem, defease, retire
or otherwise acquire for value, prior to any scheduled principal payment, sinking fund or maturity, any Subordinated Indebtedness of the Company or any Restricted Subsidiary (other than the principal payment on, or the purchase, redemption,
defeasance, retirement or other acquisition for value of, Subordinated Indebtedness made in satisfaction of or anticipation of satisfying a sinking fund obligation, principal installment or final maturity within one year of the due date of
such obligation, installment or final maturity); or (iv) make any Investment (other than Permitted Investments) (each of the foregoing actions set forth in clauses (i), (ii), (iii) and (iv) being referred to as a “Restricted Payment”),
if at the time of such Restricted Payment or immediately after giving effect thereto:
(1) solely in the case of a Restricted Payment set forth in clauses (i), (ii) or (iii) of this Section 409(a),
an Event of Default shall have occurred and be continuing;
(2) solely in the case of a Restricted Payment set forth in clauses (i), (ii) or (iii) of this Section 409(a), the
Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 407(a); or
(3) the aggregate amount of Restricted Payments (including such proposed Restricted Payment and excluding Permitted Payments
(other than Permitted Payments listed in clauses (i) and (vi) of Section 4.09(b)) made after April 4, 2024 (the amount expended for such purpose, if other than in cash, being the Fair Market Value of such property as determined
reasonably and in good faith by the Board of Directors of the Company) shall exceed the sum of:
(A) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned during the period beginning on the first day of the fiscal quarter commencing on July 1, 2023 and through the end of the most recent fiscal quarter for
which financial statements are available prior to the date such Restricted Payment occurs (the date of such Restricted Payment, the “Reference Date”) (treating such period as a single accounting period); plus
(B) 100% of the Fair Market Value of the net proceeds received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to April 4, 2024 and on or prior to the Reference Date of Qualified Capital Stock of the Company or from the issuance of Indebtedness of the Company that has been converted into or exchanged
for Qualified Capital Stock of the Company subsequent to April 4, 2024 and on or prior to the Reference Date; plus
(C) without duplication of any amounts included in clause (3)(B) above, 100% of the Fair Market Value of the net proceeds of
any contribution to the common equity capital of the Company received by the Company from a holder of the Company’s Capital Stock subsequent to April 4, 2024; plus
(D) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or
consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after April 4, 2024,
the Fair Market Value of the Investment of the Company or the Restricted Subsidiary in such Unrestricted Subsidiary at the time of such redesignation or at the time of such merger, amalgamation, consolidation or transfer of assets (or the
assets transferred or conveyed, as applicable), as determined by the Company in good faith, provided, however, that the amounts set forth in this clause (D)
shall not exceed the amount of Investments (excluding Permitted Investments) in such Unrestricted Subsidiary previously made and treated as a Restricted Payment by the Company or any Restricted Subsidiary after April 4, 2024 that reduced
the amount available under this clause (3) or clause (viii) of Section 409(b); plus
(E) an amount equal to the sum of (1) the net reduction in the Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in any Person after April 4, 2024 resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the
dividends, distributions or other returns of capital, in each case received by the Company or any Restricted Subsidiary and (2) the amount of any Guarantee or similar arrangement that has terminated or expired or by which it has been
reduced to the extent that it was treated as a Restricted Payment after April 4, 2024 that reduced the amount available under this clause (3) or clause (viii) of Section 409(b) net of any amounts paid by the Company or a Restricted
Subsidiary in respect of such Guarantee or similar arrangement; provided, however, that the amounts set forth in clauses (1) and (2) above shall not exceed,
in the case of any such Person, the amount of Investments in such Person (excluding Permitted Investments) previously made and treated as a Restricted Payment by the Company or any Restricted Subsidiary after April 4, 2024 that reduced the
amount available under this clause (3) or clause (viii) of Section 409(b).
(b) Notwithstanding the foregoing, the provisions of Section 409(a) do not prohibit (such provisions, “Permitted Payments”):