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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 3, 2023 (October 31, 2023)
TARGET HOSPITALITY CORP.
(Exact name of registrant as specified in
its charter)
| Delaware |
|
001-38343 |
|
98-1378631 |
(State or other jurisdiction of
incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
9320 Lakeside Blvd., Suite 300
The
Woodlands, TX 77381
(Address, including zip code, of principal
executive offices)
(832) 709-2563
(Registrant’s telephone number, including
area code)
(Former name or former address, if changed
since last report)
Check the appropriate
box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
| |
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| Common stock, par value $0.0001 per share |
|
TH |
|
The Nasdaq
Capital Market LLC |
| Warrants to purchase common stock |
|
THWWW |
|
The Nasdaq
Capital Market LLC |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company x
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry into a Material Definitive Agreement. |
New Notes Indenture and New Notes
General
On November 1, 2023 (the “Issue Date”), Arrow Bidco,
LLC (the “Issuer”), a wholly-owned indirect subsidiary of Target Hospitality Corp. (the “Company”),
the guarantors from time to time party thereto and Deutsche Bank Trust Company Americas, as trustee and as collateral agent (in such capacity,
the “New Notes Trustee”), entered into an indenture (the “New Notes Indenture”) governing the Issuer’s
10.75% Senior Secured Notes due 2025 (the “New Notes”). As previously announced, on the Issue Date, approximately $181.4
million aggregate principal amount of the New Notes were issued as consideration for the exchange of the Issuer’s existing 9.50%
Senior Secured Notes due 2024 (the “Existing Notes”) pursuant to the previously announced exchange offer (the “Exchange
Offer”). Following this issuance and related transactions, approximately $28.1 million aggregate principal amount of Existing
Notes remains outstanding.
The New Notes were issued pursuant to private placement exemptions
under the Securities Act of 1933, as amended (the “Securities Act”). The New Notes have not been registered under the
Securities Act or any state securities laws and may not be offered or sold in the United States absent an effective registration statement
or an applicable exemption from registration requirements or a transaction not subject to the registration requirements of the Securities
Act or any state securities laws.
The Issuer’s obligations under the New Notes and the New Notes
Indenture are jointly and severally, irrevocably and unconditionally guaranteed on a senior secured basis by the same guarantors as the
Existing Notes (the “Guarantors”). Target Hospitality is not an issuer or a guarantor of the New Notes. The New Notes
and the related guarantees are secured on the same senior secured basis as the Existing Notes by a second-priority lien on substantially
all, present and hereinafter acquired, assets of the Issuer and each of the Guarantors, subject to certain customary exemptions and permitted
liens.
Maturity and Interest Payments
The New Notes will mature on June 15, 2025; provided that if
any Existing Notes remain outstanding on March 15, 2024, then the New Notes will mature on March 15, 2024 at a make-whole price. Interest
on the New Notes will accrue at 10.75% per annum, payable semi-annually on March 15 and September 15 of each year, beginning March 15,
2024.
Redemption
Prior to September 15, 2024, the New Notes will be redeemable at the
Issuer’s option at a make-whole price. On and after September 15, 2024, the New Notes will be redeemable at the Issuer’s option
during the 6-month period beginning on the dates set forth below at the redemption prices listed below:
| Date | |
Redemption Price | |
| September 15, 2024 | |
| 102.000 | % |
| March 15, 2025 and thereafter | |
| 101.000 | % |
Certain Covenants
The New Notes Indenture contains covenants that limit the Issuer’s
and the its subsidiaries’ ability to, among other things, (i) incur or guarantee additional debt and issue certain types of stock,
(ii) create or incur certain liens, (iii) make certain payments, including dividends or other distributions, (iv) prepay or redeem junior
debt, (v) make certain investments or acquisitions, including participating in joint ventures, (vi) engage in certain transactions with
affiliates and (vii) sell assets, consolidate or merge with or into other companies. These covenants are subject to a number of important
limitations and exceptions. In addition, upon the occurrence of specified change of control events, the Issuer must offer to repurchase
the New Notes at 101% of the principal amount, plus accrued and unpaid interest, if any, to, but excluding, the applicable repurchase
date. The New Notes Indenture also provides for events of default, which, if any of them occurs, would permit or require the principal,
premium, if any, interest and any other monetary obligations on all of the then outstanding New Notes to be due and payable immediately.
A copy of the New Notes Indenture is included as Exhibit 4.1 to this
Current Report on Form 8-K and is incorporated by reference herein.
Supplemental Indenture
On
November 1, 2023, the Issuer and Deutsche Bank Trust Company Americas, as trustee and as collateral agent (in such capacity, the “Existing
Notes Trustee”), entered into a first supplemental indenture (the “Supplemental Indenture”) to the indenture,
dated as of March 15, 2019 (as amended and supplemented from time to time, the “Existing Notes Indenture”), by and
among the Issuer, the guarantors from time to time party thereto and the Existing Notes Trustee, governing the Existing Notes. The Supplemental
Indenture amended the Existing Notes Indenture and the Existing Notes to effectuate certain proposed amendments with respect to the Existing
Notes pursuant to the previously announced solicitation of consents (the “Consent Solicitation”), which amendments
included eliminating substantially all of the restrictive covenants, eliminating certain events of default, modifying covenants regarding
mergers and consolidations and modifying or eliminating certain other provisions, including certain provisions relating to future guarantors
and defeasance, contained in the Existing Notes Indenture and the Existing Notes. In addition, all of the collateral securing the Existing
Notes was released pursuant to the Supplemental Indenture.
A copy of the Supplemental Indenture is included as Exhibit 4.2 to
this Current Report on Form 8-K and is incorporated by reference herein.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 2.03.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On October 31, 2023, the Board of Directors (the “Board”)
of the Company adopted and approved, effective immediately, the third amended and restated bylaws of the Company (as amended and restated,
the “Amended and Restated Bylaws”). The Amended and Restated Bylaws, among other things:
| · | revise procedures and advance notice and disclosure requirements for the nomination of directors and the submission of proposals for
consideration at meetings of the stockholders of the Company; |
| · | adopt gender neutral terms when referring to particular positions, offices or title holders, including the adoption of the title chair
in place of chairman; and |
| · | make certain administrative, modernizing, clarifying and conforming changes, including making updates to reflect recent amendments
to the General Corporation Law of the State of Delaware. |
The foregoing summary of the Amended and Restated Bylaws does not purport
to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, which is attached as
Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.
On November 1, 2023, the Company issued a press release announcing
the settlement of the Exchange Offer. A copy of the press release is attached as Exhibit 99.1 to this Form 8-K and incorporated by reference
herein.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
|
Exhibit Description |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned,
hereunto duly authorized.
| |
Target Hospitality Corp. |
| |
|
| |
By: |
/s/ Heidi D. Lewis |
| Dated: November 3, 2023 |
|
Name: Heidi D. Lewis |
| |
|
Title: Executive Vice President, General Counsel and Secretary |
Exhibit 3.1
THIRD AMENDED AND RESTATED BYLAWS
OF
TARGET HOSPITALITY CORP.
October 31, 2023
ARTICLE 1
STOCKHOLDERS
Section 1.1 Place
of Meetings. Meetings of stockholders of Target Hospitality Corp., a Delaware corporation (the “Corporation”),
shall be held at the place, either within or without the State of Delaware, as may be designated by the Board of Directors of the Corporation
(the “Board of Directors”) from time to time; provided, that the Board of Directors may, in its sole discretion,
determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication
as authorized by Section 211(a)(2) of the Delaware General Corporation Law (the “DGCL”).
Section 1.2 Annual
Meetings. Annual meetings of stockholders shall be held at such date, time and place, if any, as fixed by the Board of Directors for
the purpose of electing directors and transacting any other business as may properly come before such meetings. The Corporation may postpone,
reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.
Section 1.3 Special
Meetings. Except as otherwise required by law, special meetings of stockholders for any purpose or purposes may be called at any time
only by the Board of Directors, the Chair of the Board of Directors or the Chief Executive Officer of the Corporation, to be held at such
place, if any, date and time as shall be designated in the notice or waiver of notice thereof. Only business within the purposes described
in the Corporation’s notice of meeting required by Section 1.4 may be conducted at the special meetings. The
ability of the stockholders to call a special meeting is specifically denied. The Corporation may postpone, reschedule or cancel any special
meeting of stockholders previously scheduled by the Board of Directors.
Section 1.4 Notice
of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall
be given that shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law, the Corporation’s Certificate of Incorporation (as the
same may be amended or restated from time to time, the “Certificate of Incorporation”) or these Bylaws, the notice
of any meeting shall be given no fewer than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote
at such meeting.
Section 1.5 Adjournments.
Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice
need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is
taken or are provided in any other manner permitted by the DGCL. At the adjourned meeting, the Corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting.
Section 1.6 Quorum.
Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders, the presence in
person or by proxy of the holders of shares of stock having a majority of the votes that could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum, and the stockholders present
at any duly convened meeting may continue to do business until adjournment notwithstanding any withdrawal from the meeting of holders
of shares counted in determining the existence of a quorum. In the absence of a quorum, the chair of the meeting or the stockholders so
present, by majority vote, may adjourn the meeting from time to time in the manner provided in Section 1.5 of these
Bylaws until a quorum shall attend. Shares of the Corporation’s capital stock shall neither be entitled to vote nor be counted for
quorum purposes if such shares belong to (i) the Corporation, (ii) another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation or (iii) any other
entity, if a majority of the voting power of such other entity is otherwise controlled, directly or indirectly, by the Corporation; provided, however,
that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it
in a fiduciary capacity.
Section 1.7 Organization.
Meetings of stockholders shall be presided over by the Chair of the Board of Directors, if any, or in his or her absence by the Lead Director
of the Board of the Directors, if any, or in his or her absence by the Chief Executive Officer, or in his or her absence by a chair designated
by the Board of Directors, or in the absence of such designation, by a chair chosen at the meeting. The Secretary shall act as secretary
of the meeting, but in his or her absence the chair of the meeting may appoint any person to act as secretary of the meeting.
Section 1.8 Voting;
Proxies. Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by such stockholder that has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy,
but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient
in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting
in person, by delivering to the Secretary of the Corporation a revocation of the proxy or another duly executed proxy bearing a later
date. Voting at meetings of stockholders need not be by written ballot. Directors shall be elected by a plurality of the votes entitled
to be cast by the stockholders who are present in person or represented by proxy at the meeting and entitled to vote on the election of
directors. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless a different
or minimum vote is required by the Certificate of Incorporation, these Bylaws, the rules and regulations of any stock exchange applicable
to the Corporation, or any law or regulation applicable to the Corporation or its securities in which case such different or minimum vote
shall be the applicable vote on the matter, shall be decided by the affirmative vote of the holders of a majority of the votes entitled
to be cast by the stockholders who are present in person or represented by proxy at the meeting and entitled to vote on the matter.
Section 1.9 Stockholder
Action by Consent. Unless otherwise provided in the Certificate of Incorporation, any action required by the DGCL to be taken at any
annual or special meeting of stockholders of a corporation, or any action that may be taken at any annual or special meeting of such stockholders,
may be taken without a meeting, without prior notice and without a vote, if a consent, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation in the manner
required by the DGCL, provided, however, that an action by consent to elect directors, unless such action is unanimous, may be in lieu
of the holding of an annual meeting only if all the directorships to which directors could be elected at an annual meeting held at the
effective time of such action are vacant and are filled by such action.
No consent shall be effective
to take the corporate action referred to in such consent unless consents signed by the requisite number of stockholders required to take
the action are delivered to the corporation within 60 days of the first date on which a consent is delivered to the corporation in the
manner required by the DGCL.
If an action by consent under
this Section 1.9 has been taken by stockholders by less than unanimous consent, prompt notice of the taking of the action by consent
shall be given to those stockholders as of the record date for the action by consent who have not consented and who would have been entitled
to notice of the meeting if the action had been taken at a meeting and the record date for the meeting were the record for action by consent.
Section 1.10 Record
Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, unless otherwise required
by law, not be more than 60 nor fewer than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date
shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines,
at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice
is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the determination of stockholders entitled to vote at the adjourned meeting,
and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier
date as that fixed for determination of stockholders entitled to vote.
In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted,
and which record date shall not be more than 60 days prior to such action. If no such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
Unless otherwise restricted
by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express consent to corporate
action without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of Directors. If no record date for determining stockholders entitled
to express consent to corporate action without a meeting is fixed by the Board of Directors, (i) when no prior action of the Board
of Directors is required by law, the record date for such purpose shall be the first date on which a signed consent setting forth the
action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action
by the Board of Directors is required by law, the record date for such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
Section 1.11 List
of Stockholders Entitled to Vote. The Corporation shall prepare, no later than the tenth day before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders
entitled to vote is less than 10 days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the
10th day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic
contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting
for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business
hours, at the Corporation’s principal place of business. In the event that the Corporation determines to make the list available
on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders
of the Corporation.
Section 1.12 Notice
of Stockholder Business; Nominations.
| (a) | Annual Meetings of Stockholders. Nominations of one or more individuals to the Board of Directors
(each, a “Nomination,” and more than one, “Nominations”) and the proposal of business other than
Nominations (“Business”) to be considered by the stockholders of the Corporation may be made at an annual meeting of
stockholders only (1) pursuant to the Corporation’s notice of meeting or any supplement thereto (provided, however,
that reference in the Corporation’s notice of meeting to the election of directors or to the election of members of the Board of
Directors shall not include or be deemed to include nominations by stockholders), (2) by or at the direction of the Board of Directors
or any duly authorized committee thereof or (3) by any stockholder of the Corporation who was a stockholder of record of the Corporation
at the time the notice provided for in this Section 1.12 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section 1.12. Subclause
(3) above shall be the exclusive means for a stockholder to make nominations or submit business (other than matters properly brought
under Rule 14a-8 (or any successor thereto) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and indicated in the Corporation’s notice of meeting) before an annual meeting of stockholders. |
| (b) | Special Meetings of Stockholders. Only such Business shall be conducted at a special meeting of
stockholders of the Corporation as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations
may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting
(1) by or at the direction of the Board of Directors or (2) provided that the Board of Directors has determined that directors
shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided
for in this Section 1.12 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting
and upon such election, and who complies with the notice procedures set forth in this Section 1.12. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such
stockholder entitled to vote in such election of directors may make Nominations of one or more individuals (as the case may be) for election
to such positions as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by Section 1.12(c)(1) shall
be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation in accordance with Section 1.12(c)(1)(E). |
| (c) | Stockholder Nominations and Business. For Nominations and Business to be properly brought before
an annual meeting by a stockholder pursuant to Section 1.12(a)(3), the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation in compliance with this Section 1.12, and any such proposed Business must
constitute a proper matter for stockholder action. For Nominations to be properly brought before a special meeting by a stockholder pursuant
to Section 1.12(b)(2), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation
in compliance with this Section 1.12. |
| (1) | Stockholder Nominations. |
(A) Only
individuals subject to a Nomination made in compliance with the procedures set forth in this Section 1.12 shall
be eligible for election at an annual or special meeting of stockholders of the Corporation, and any individuals subject to a Nomination
not made in compliance with this Section 1.12 shall not be considered nor acted upon at such meeting of stockholders.
(B) For
Nominations to be properly brought before an annual or special meeting of stockholders of the Corporation by a stockholder pursuant to Section 1.12(a)(3) or Section 1.12(b)(2),
respectively, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation at the principal executive
offices of the Corporation pursuant to this Section 1.12. To be timely, the stockholder’s notice must be delivered
to the Secretary of the Corporation as provided in Section 1.12(c)(1)(C) or Section 1.12(c)(1)(D),
in the case of an annual meeting of stockholders of the Corporation, and Section 1.12(c)(1)(E), in the case of a special
meeting of stockholders of the Corporation, respectively.
(C) In
the case of an annual meeting of stockholders of the Corporation, to be timely, any Nomination made pursuant to Section 1.12(a)(3) shall
be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business
on the 90th day, nor earlier than the close of business on the 120th day, prior to the first anniversary of the preceding year’s
annual meeting (provided, however, that in the event that the date of the annual meeting is more than 30 days before
or more than 60 days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business
on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation).
In no event shall the public announcement of an adjournment or postponement of an annual meeting of stockholders of the Corporation commence
a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees
a stockholder may nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial
owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall
not exceed the number of directors to be elected at such annual meeting.
(D) Notwithstanding Section 1.12(c)(1)(C),
in the event that the number of directors to be elected to the Board of Directors at an annual meeting of stockholders of the Corporation
is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least 100
days prior to the first anniversary of the preceding year’s annual meeting, the stockholder’s notice required by this Section 1.12 shall
also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary
of the Corporation at the principal executive offices of the Corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the Corporation.
(E) In
the case of a special meeting of stockholders of the Corporation, to be timely, any Nomination made pursuant to Section 1.12(b)(2) shall
be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business
on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special
meeting or the 10th day following the day on which public announcement is first made of the date of such special meeting and of the nominees
proposed by the Board of Directors to be elected at such special meeting. In no event shall the public announcement of an adjournment
or postponement of a special meeting of stockholders of the Corporation commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate for election at the special
meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate
for election at the special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such
annual meeting.
(F) To
be in proper form, a stockholder’s notice of Nomination(s) pursuant to Section 1.12(a)(3) or Section 1.12(b)(2) shall
set forth: (i) as to any Nomination to be made by such stockholder, (a) all information relating to the individual subject to
such Nomination that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Section 14 under the Exchange Act and the rules and regulations promulgated
thereunder, without regard to the application of the Exchange Act to either the Nomination or the Corporation, (b) such individual’s
written consent to being named in the Corporation’s proxy statement as a nominee and to serving as a director if elected, (c) a
questionnaire completed and signed by such proposed nominee (in the form to be provided by the Secretary upon written request of any stockholder
of record within 10 days of such request) with respect to the background and qualification of such proposed nominee and the background
of any other person or entity on whose behalf the nomination is being made and (d) a written representation and agreement (in the
form to be provided by the Secretary upon written request of any stockholder of record within 10 days of such request) that such proposed
nominee (1) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on
any issue or question that has not been disclosed to the Corporation or that could limit or interfere with such proposed nominee’s
fiduciary duties under applicable law, (2) is not and will not become a party to any agreement, arrangement or understanding with
any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not been disclosed to the Corporation, and (3) would be in compliance,
if elected as a director of the Corporation, and will comply with, all applicable publicly disclosed corporate governance, code of conduct
and ethics, conflict of interest, confidentiality, corporate opportunities, trading and any other policies and guidelines of the Corporation
applicable to directors; (ii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the Nomination
is made the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner; (iii) as
to the stockholder giving notice, a representation that the stockholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and such stockholder (or a qualified representative of the stockholder) intends to appear in person or by proxy at
the meeting to propose such Nomination; and (iv) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, and any of their respective affiliates or associates (such affiliates or associates, the “Stockholder
Associated Persons”) (a) the class, series and number of shares of capital stock of the Corporation that are owned beneficially
and of record by such stockholder, beneficial owner and Stockholder Associated Person, including any shares of any class or series of
capital stock of the Corporation as to which such stockholder, beneficial owner or Stockholder Associated Persons have a right to acquire
beneficial ownership at any time in the future, (b) , whether and the extent to which any hedging or other transaction or series
of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any short position
or any borrowing or lending of shares of stock) has been made, whether or not such instrument or right shall be subject to settlement
in underlying shares of capital stock of the Corporation, the effect or intent of which is to mitigate loss to or manage risk of stock
price changes for, or to increase the voting power of, such stockholder, beneficial owner or Stockholder Associated Person with respect
to any share of stock of the Corporation, (c) a representation whether the stockholder, any beneficial owner or any Stockholder Associated
Person intends or is part of a group that intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding capital stock required to elect the individual subject to the Nomination, (2) otherwise
to solicit proxies from stockholders of the Corporation in support of such Nomination and/or (3) to solicit proxies in support of
any proposed nominees in accordance with Rule 14a-19 promulgated under the Exchange Act,, (d) any other information relating
to such stockholder, beneficial owner or Stockholder Associated Person, if any, required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors
in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder, (e) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation
made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such
stockholder, beneficial owner or Stockholder Associated Person have or share a right, directly or indirectly, to vote any shares of any
class or series of capital stock of the Corporation, (f) a description of any rights to dividends or other distributions on the shares
of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such stockholder, beneficial
owner or Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation, (g) a description
of any performance-related fees (other than an asset based fee) that such stockholder, beneficial owner or Stockholder Associated Person,
directly or indirectly, are entitled to based on any increase or decrease in the value of shares of any class or series of capital stock
of the Corporation or any interests described in clause (ii)(b) above, and (h) a description of any agreement, arrangement or
understanding with respect to the Nomination between or among such stockholder and/or such beneficial owner, Stockholder Associated Person,
and any other person, , including the individual subject to the Nomination, including any agreements, arrangements or understandings relating
to any compensation or payments to be paid to any such individual subject to the Nomination, pertaining to the Nomination (which description
shall identify the name of each other person who is party to such an agreement, arrangement or understanding). The Corporation may require
any individual subject to such Nomination to furnish such other information as it may reasonably require to determine the eligibility
of such individual to serve as a director of the Corporation.
(A) Only
such Business shall be conducted at an annual or special meeting of stockholders of the Corporation as shall have been brought before
such meeting in compliance with the procedures set forth in this Section 1.12, and any Business not brought in accordance
with this Section 1.12 shall not be considered nor acted upon at such meeting of stockholders.
(B) In
the case of an annual meeting of stockholders of the Corporation, to be timely, any such written notice of a proposal of Business pursuant
to Section 1.12(a)(3) shall be delivered to the Secretary of the Corporation at the principal executive offices
of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior
to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder must
be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business
on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of
such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement of an annual
meeting of stockholders of the Corporation commence a new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
(C) To
be in proper form, a stockholder’s notice of a proposal of Business pursuant to Section 1.12(a)(3) shall set
forth: (i) as to the Business proposed by such stockholder, a brief description of the Business desired to be brought before the
meeting, the text of the proposal or Business (including the text of any resolutions proposed for consideration and in the event that
such Business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for interest
in such Business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal is made the name and address of such stockholder, as
they appear on the Corporation’s books, and of such beneficial owner; (iii) as to the stockholder giving notice, a representation
that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and such stockholder (or a qualified
representative of such stockholder) intends to appear in person or by proxy at the meeting to propose such Business; and (iv) as
to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, and any Stockholder
Associated Person (a) the class, series, and number of shares of capital stock of the Corporation that are owned beneficially and
of record by such stockholder, beneficial owner and Stockholder Associated Person, including any shares of any class or series of capital
stock of the Corporation as to which such stockholder, beneficial owner or Stockholder Associated Persons have a right to acquire beneficial
ownership at any time in the future, (b) whether and the extent to which any hedging or other transaction or series of transactions
has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any short position or any borrowing
or lending of shares of stock) has been made, whether or not such instrument or right shall be subject to settlement in underlying shares
of capital stock of the Corporation, the effect or intent of which is to mitigate loss to or manage risk of stock price changes for, or
to increase the voting power of, such stockholder, beneficial owner or Stockholder Associated Person with respect to any share of stock
of the Corporation, (c) a representation whether the stockholder, any beneficial owner or any Stockholders Associated Person intends
or is part of a group that intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation’s outstanding capital stock required to approve or adopt the proposed Business and/or (2) otherwise to solicit
proxies from stockholders of the Corporation in support of such Business, (d) any other information relating to such stockholder,
beneficial owner or Stockholder Associated Person, if any, required to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder, (e) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant
to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such stockholder,
beneficial owner or Stockholder Associated Person have or share a right, directly or indirectly, to vote any shares of any class or series
of capital stock of the Corporation, (f) a description of any rights to dividends or other distributions on the shares of any class
or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such stockholder, beneficial owner or Stockholder
Associated Person that are separated or separable from the underlying shares of the Corporation, (g) a description of any performance-related
fees (other than an asset based fee) that such stockholder, beneficial owner or Stockholder Associated Person, directly or indirectly,
are entitled to based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation or
any interests described in clause (ii)(b) above, and (h) a description of any agreement, arrangement or understanding with respect
to the Business between or among such stockholder and/or beneficial owner or any Stockholder Associated Person. The foregoing notice requirements
of this paragraph (C) shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder
has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and
regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual meeting.
(1) Except
as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are
nominated in accordance with the procedures set forth in this Section 1.12 shall be eligible to be elected at an annual or special
meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.12. Except as otherwise
provided by law, at any meeting of stockholders the chair of the meeting of stockholders of the Corporation (or, in advance of any meeting
of stockholders, the Board of Directors or an authorized committee thereof) shall have the power and duty (a) to determine whether
a Nomination or Business proposed to be brought before such meeting was made or proposed in accordance with the procedures set forth in
this Section 1.12, and (b) if any proposed Nomination or Business was not made or proposed in compliance with this Section 1.12,
to declare that such Nomination or Business shall be disregarded or that such proposed Nomination or Business shall not be considered
or transacted notwithstanding that such Nomination or Business is included in the Corporation’s proxy statement, notice of meeting
or other proxy materials for any annual meeting (or any supplement thereto) and notwithstanding that proxies in respect of such vote may
have been received by the Corporation. Notwithstanding the foregoing provisions of this Section 1.12, if a stockholder
(or a qualified representative of such stockholder) does not appear at the annual or special meeting of stockholders of the Corporation
to present a Nomination or Business, such Nomination or Business shall be disregarded and such Nomination or Business shall not be considered
or transacted, notwithstanding that such Nomination or Business is included in the Corporation’s proxy statement, notice of meeting
or other proxy materials for any annual meeting (or any supplement thereto) and notwithstanding that proxies in respect of such vote may
have been received by the Corporation. For purposes of this Section 1.12, to be considered a qualified representative of the stockholder,
a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such
stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission,
at the meeting of stockholders. Notwithstanding anything to the contrary in these Bylaws, unless otherwise required by law, if any stockholder,
beneficial owner or Stockholder Associated Person (i) provides notice pursuant to Rule 14a-19(b) promulgated under the
Exchange Act with respect to any proposed nominee and (ii) subsequently fails to comply with the requirements of Rule 14a-19
promulgated under the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such stockholder
has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the following sentence),
then the Nomination of each such proposed nominee shall be disregarded, notwithstanding that the nominee is included as a nominee in the
Corporation’s proxy statement, notice of meeting or other proxy materials for any annual meeting (or any supplement thereto) and
notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which
proxies and votes shall be disregarded). If any stockholder, beneficial owner or Stockholder Associated Person provides notice pursuant
to Rule 14a-19(b) promulgated under the Exchange Act, such stockholder shall deliver to the Corporation, no later than five
(5) business days prior to the applicable meeting, reasonable evidence that it or such beneficial owner or Stockholder Associated
Person has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(2) For
purposes of this Section 1.12, “public announcement” shall include disclosure in a press release reported
by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission.
(3) Nothing
in this Section 1.12 shall be deemed to affect (a) the rights or obligations, if any, of stockholders of the
Corporation to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor
thereto) under the Exchange Act or (b) the rights, if any, of the holders of any series of preferred stock of the Corporation to
elect directors pursuant to any applicable provisions of the Certificate of Incorporation.
(4) A
stockholder providing notice of a Nomination or Business to be brought before a meeting (given pursuant to paragraph a of this Section 1.12
or paragraph (b) of this Section 1.12, as applicable) shall promptly update and supplement such notice from time to time to
the extent necessary so that the information provided or required to be provided in such notice pursuant to clauses (c)(1)(F)(i), (ii),
(iv)(a)-(b), (d)-(h) (with respect Nominations) and (c)(2)(C)(i), (ii), (iv)(a)-(b), (d)-(h) (with respect to Business) of this
Section 1.12 shall be true and correct (x) as of the record date for notice and voting at the meeting and (y) as of the
date that is fifteen (15) days prior to the meeting or any adjournment or postponement thereof. Any such update and supplement shall be
delivered in writing to the Secretary of the Corporation at the principal executive offices of the Corporation (i) in the case of
any update and supplement required to be made as of the record date for notice of the meeting, not later than five (5) days after
the later of such record date and the public announcement of such record date and (ii) in the case of any update or supplement required
to be made as of fifteen (15) days prior to the meeting or adjournment or postponement thereof, not later than ten (10) days prior
to the date for the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement
as set forth in this Section 1.12(c)(d)(4) or any other section of these Bylaws shall not limit the Corporation’s
rights with respect to any deficiencies in any stockholder's notice, including, without limitation, any representation required herein,
extend any applicable deadlines under these Bylaws or enable or be deemed to permit a stockholder who has previously submitted a stockholder's
notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding nominees, matters,
business and/or resolutions proposed to be brought before a meeting of stockholders.
Section 1.13 Conduct
of Meeting. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at
a meeting shall be announced at the meeting by the chair of the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chair of the meeting of stockholders shall have the right and authority to convene
and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote
at the meeting, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine; (iv) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. The chair at any meeting of stockholders, in addition to making any other determinations that may be appropriate
to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such chair should so determine, such chair shall so declare to the meeting and any such matter or business
not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors
or the chair of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 1.14. Delivery
to the Corporation. Whenever this Article 1 requires one or more persons (including a record or beneficial owner of stock
of the Corporation) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice,
request, questionnaire, revocation, representation or other document or agreement), such document or information shall be in writing exclusively
(and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service)
or by certified or registered mail, return receipt requested and the Corporation shall not be required to accept delivery of any document
not in such written form or so delivered. For the avoidance of doubt, with respect to any notice from any stockholder of record
or beneficial owner of the Corporation’s capital stock under the Certificate of Incorporation, these Bylaws or the DGCL, to the
fullest extent permitted by law, the Corporation expressly opts out of Section 116 of the DGCL.
ARTICLE 2
BOARD OF DIRECTORS
Section 2.1 Regular
Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine, and if so determined, notices thereof need not be given.
Section 2.2 Special
Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever
called by the Chief Executive Officer, any Vice President, the Secretary or by a majority of the Board of Directors. Notice of the time
and place of special meetings shall be:
| (a) | delivered personally by hand, by courier or by telephone; |
| (b) | sent by United States first-class mail, postage prepaid; |
| (d) | sent by electronic mail, |
directed to each director at that director’s
address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the Corporation’s records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by
electronic mail, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice is sent
by United States mail, it shall be deposited in the United States mail at least four days before the time of the holding of the meeting.
Any oral notice may be communicated to the director. The notice need not specify the place of the meeting (if the meeting is to be held
at the Corporation’s principal executive office) nor the purpose of the meeting.
Section 2.3 Telephonic
Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a
meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this Section 2.3 shall constitute presence
in person at such meeting.
Section 2.4 Quorum;
Vote Required for Action. At all meetings of the Board of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the Certificate of Incorporation, these Bylaws or any agreement binding
upon the Corporation otherwise provide, the vote of a majority of the directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors.
Section 2.5 Organization.
Meetings of the Board of Directors shall be presided over by the Chair of the Board of Directors, if any, or in his or her absence by
the Lead Director of the Board of Directors, if any, or in his or her absence by the Chief Executive Officer, or in their absence by a
chair chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chair of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.6 Board
of Directors Action by Written Consent Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting, without prior notice and without a vote, if all members of the Board of Directors or such committee, as the case may
be, consent thereto in writing or by electronic transmission. After an action is taken, the consent or consents relating thereto shall
be filed with the minutes of proceedings of the Board of Directors or such committee. Such filing shall be in paper form if such minutes
are maintained in paper form and shall be in electronic form if such minutes are maintained in electronic form.
Section 2.7 Fees
and Compensation of Directors. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the authority to fix the compensation of directors, or may delegate such authority to an appropriate committee.
Section 2.8 Number
of Directors. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by
resolution of the Board of Directors.
Section 2.9 Powers
and Duties of Board Chair and Lead Director. The Board of Directors may, if it so determines, choose a Chair of the Board of Directors
and a Lead Director from among its members.
| (a) | Chair of the Board of Directors. The Chair of the Board, if any, shall be a director of the Corporation.
The Chair of the Board of Directors shall undertake duties prescribed herein and such other duties or responsibilities as the Board of
Directors may assign. |
| (b) | Lead Director of the Board of Directors. The Lead Director of the Board, if any, shall be a director
of the Corporation, who is not also an officer of the Corporation. The Lead Director of the Board of Directors shall undertake duties
prescribed herein and such other duties or responsibilities as the Board of Directors may assign. |
ARTICLE 3
COMMITTEES
Section 3.1 Committees.
The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent
permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all pages that may require it.
Section 3.2 Committee
Rules. Unless the Board of Directors or the charter of any such committee otherwise provides, each committee designated by the Board
of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article 2 of these Bylaws. Each
committee and subcommittee shall keep regular minutes of its meetings and report the same to the board of directors, or the committee,
when required.
ARTICLE 4
OFFICERS
Section 4.1 Executive
Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The officers of the Corporation shall
be chosen by the Board of Directors and shall be a Chief Executive Officer, Chief Financial Officer and Secretary. The Board of Directors
may also elect a General Counsel, a President, one or more Vice Presidents, Assistant Secretaries, Controllers, Assistant Controllers
and such other officers as the Board of Directors deems necessary. Each such officer shall hold office for the term for which he or she
is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her death or until
he or she shall resign or until he or she shall have been removed in the manner hereinafter provided. Any officer may resign at any time
upon notice to the Corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall
be without prejudice to the contractual rights of such officer, if any, with the Corporation. Any number of offices may be held by the
same person. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board of Directors.
Section 4.2 Powers
and Duties of Executive Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation
as may be prescribed by the Board of Directors, and to the extent not so prescribed, they shall each have such powers and authority and
perform such duties in the management of the property and affairs of the Corporation, subject to the control of the Board of Directors,
as generally pertain to their respective offices. The Board of Directors may require any officer, agent or employee to give security for
the faithful performance of his or her duties. Without limitation of the foregoing:
| (a) | Chief Executive Officer. The Chief Executive Officer shall be the principal executive officer of
the Corporation. Subject to the control of the Board of Directors, the Chief Executive Officer shall have general supervision over the
business of the Corporation and shall have such other powers and duties as chief executive officers of corporations usually have or as
the Board of Directors may assign. |
| (b) | President. The President shall be the chief operations officer of the Corporation. Subject to the
control of the Board of Directors, the President shall have general supervision over the business of the Corporation, to the extent not
the responsibility of the Chief Executive Officer, and shall have such other powers and duties as presidents of corporations usually have
or as the Board of Directors may assign. |
| (c) | Chief Financial Officer. The Chief Financial Officer shall be the principal financial officer of
the Corporation and shall have custody of all funds and securities of the Corporation and shall sign all instruments and documents as
require his or her signature. The Chief Financial Officer shall undertake such other duties or responsibilities as the Board of Directors
may assign. |
| (d) | Vice President. Each Vice President shall have such powers and duties as the Board of Directors
or the Chief Executive Officer may assign. |
| (e) | Secretary. The Secretary shall issue notices of all meetings of the stockholders and the Board
of Directors where notices of such meetings are required by law or these Bylaws and shall keep the minutes of such meetings. The Secretary
shall sign such instruments and attest such documents as require his or her signature of attestation and affix the corporate seal thereto
where appropriate. |
Section 4.3 Compensation.
The salaries of the officers shall be fixed from time to time by the Board of Directors. Nothing contained herein shall preclude any officer
from serving the Corporation in any other capacity, including that of director, or from serving any of its stockholders, subsidiaries
or affiliated entities in any capacity and receiving proper compensation therefor.
Section 4.4 Representation
of Shares of Other Corporations. Unless otherwise directed by the Board of Directors, the Chief Executive Officer or any other person
authorized by the Board of Directors or the Chief Executive Officer is authorized to vote, represent and exercise on behalf of the Corporation
all rights incident to any and all shares or securities of any other corporation or entity standing in the name of the Corporation. The
authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power
of attorney duly executed by such person having the authority.
ARTICLE 5
STOCK
Section 5.1 Certificates.
| (a) | The shares of the Corporation shall be represented by certificates, provided that the Board of Directors
may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. The shares
of the common stock of the Corporation shall be registered on the books of the Corporation in the order in which they shall be issued.
Any certificates for shares of the common stock, and any other shares of capital stock of the Corporation represented by certificates,
shall be numbered, shall be signed by any two authorized officers of the Corporation (it being understood that each of the Chair of the
Board of Directors, the President, a Vice President, the Secretary, an Assistant Secretary, shall be an authorized officer for such purpose)
and shall certify the number of shares owned by such holder in the Corporation. Any or all of the signatures on a certificate may be a
facsimile signature. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if he, she or it were such officer, transfer agent or registrar at the date of issue. Within a
reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall give notice in writing or by electronic
transmission to the record owner thereof setting forth the information required by Section 151(f) of the DGCL. Any stock certificates
issued and any notices given shall include such other information and legends as shall be required by law or necessary to give effect
to any applicable transfer, voting or similar restrictions. |
| (b) | No certificate representing shares of stock shall be issued until the full amount of consideration therefor
has been paid, except as otherwise permitted by law. |
Section 5.2 Lost,
Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate, or his or her legal representative, to give the Corporation a bond sufficient to indemnify
it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance
of such new certificate. If shares represented by a stock certificate alleged to have been lost, stolen or destroyed have become uncertificated
shares, the Corporation may, in lieu of issuing a new certificate, cause such shares to be reflected on its books as uncertificated shares
and may require the owner of the lost, stolen or destroyed certificate, or his or her legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of
any such certificate.
Section 5.3 Dividends.
The Board of Directors, subject to any restrictions contained in the Certificate of Incorporation or applicable law, may declare and pay
dividends upon the shares of the Corporation’s capital stock. Dividends may be paid in cash, in property, or in shares of the Corporation’s
capital stock, subject to the provisions of the Certificate of Incorporation. The Board of Directors may set apart out of any of the funds
of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes
shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
Section 5.4 Transfer
of Shares.
| (a) | Transfers of shares shall be made upon the books of the Corporation (i) only by the holder of record
thereof, or by a duly authorized agent, transferee or legal representative and (ii) in the case of certificated shares, upon the
surrender to the Corporation of the certificate or certificates for such shares duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to transfer. Shares that are not represented by a certificate shall be transferred in accordance with applicable
law. Subject to applicable law and the provisions of the Certificate of Incorporation and these Bylaws, the Board of Directors may prescribe
such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the
Corporation. |
| (b) | The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the
absolute owner thereof for all purposes and, accordingly, shall not be bound to recognize any legal, equitable or other claim to, or interest
in, such share or shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except
as otherwise expressly provided by law. |
Section 5.5 Transfer
Agent; Registrar. The Board of Directors may appoint a transfer agent and one or more co-transfer agents and registrar and one or
more co-registrars and may make, or authorize any such agent to make, all such rules and regulations deemed expedient concerning
the issue, transfer and registration of shares of stock of the Corporation.
ARTICLE 6
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 Right
to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of
the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee,
member, trustee, partner, manager, representative or agent of another corporation or of a partnership, limited liability company, joint
venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans maintained or sponsored by the
Corporation (an “Indemnitee”), whether the basis in such Proceeding is alleged action in an official capacity as director,
officer, employee, member, trustee, partner, manager, representative or agent or in any other capacity while serving as such, against
all expense, liability and loss (including attorneys’ fees, judgments, fines, excise taxes or penalties, and amounts paid in settlement)
incurred or suffered by such Indemnitee in connection therewith.
Section 6.2 Limitations
on Indemnification. Subject to the requirements in the DGCL, the Corporation shall not be obligated to indemnify any person pursuant
to this Article 6 in connection with any Proceeding (or any part of any Proceeding):
| (a) | for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy,
indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid; |
| (b) | for an accounting or disgorgement of profits pursuant to Section 16(b) of the Exchange Act,
or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant
to any settlement arrangements); |
| (c) | (i) for any reimbursement of the Corporation by such person of any bonus or other incentive-based
or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each
case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Corporation of
profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if
Indemnitee is held liable therefor (including pursuant to any settlement arrangements) or (ii) for any reimbursement of the Corporation
by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board of Directors or the
compensation committee of the Board of Directors, including but not limited to any such policy adopted to comply with stock exchange listing
requirements implementing Section 10D of the Exchange Act; |
| (d) | initiated by such person, including any Proceeding (or any part of any Proceeding) initiated by such person
against the Corporation or its directors, officers, employees, agents or other indemnitees, unless (i) the Board of Directors authorized
the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) the Corporation provides the indemnification,
in its sole discretion, pursuant to the powers vested in the Corporation under applicable law, or (iii) otherwise required by applicable
law; or |
| (e) | if prohibited by applicable law. |
Section 6.3 Prepayment
of Expenses. The Corporation shall to the fullest extent permitted by applicable law pay the expenses (including attorneys’
fees) incurred by an Indemnitee in defending any Proceeding in advance of its final disposition; provided, however,
that the payment of expenses incurred by a director or officer in advance of the final disposition of the Proceeding shall be made only
upon receipt of an undertaking (an “Undertaking”) by or on behalf of the director or officer to repay all amounts advanced
if it should be ultimately determined that the director or officer is not entitled to be indemnified under this Article or otherwise.
Section 6.4 Claims.
| (a) | Indemnitee shall notify the Corporation in writing of any matter with respect to which Indemnitee intends
to seek indemnification or advancement of expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of
notice thereof. The written notification to the Company shall include a description of the nature of the Proceeding and the facts underlying
the Proceeding. To obtain indemnification under this Article 6, an Indemnitee shall submit to the Corporation a written request,
including therein or therewith such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary
to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by an Indemnitee for indemnification
pursuant to the third sentence of this Section 6.4(a), a determination, if required by applicable law, with respect to
the Indemnitee’s entitlement thereto shall be made (1) by a majority vote of the directors who are not parties to the Proceeding
in respect of which indemnification is sought by Indemnitee (“Disinterested Directors”), even though less than a quorum,
(2) by a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum,
(3) if there are no Disinterested Directors or if the Disinterested Directors so direct, by independent legal counsel or (4) by
the stockholders of the Corporation. |
| (b) | If a claim for indemnification or advancement of expenses under this Article 6 is not paid in full
by the Corporation within 60 days after a written claim therefor by the Indemnitee has been received by the Corporation (except in the
case of a claim for advancement of expenses, for which the applicable period is 30 days), the Indemnitee may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim.
It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any Proceeding
in advance of its final disposition where the required Undertaking, if any is required, has been tendered to the Corporation) that the
Indemnitee has not met the standard of conduct that makes it permissible under the DGCL for the Corporation to indemnify the Indemnitee
for the amount claimed. Neither the failure of the Corporation (including its directors, independent counsel or stockholders) to have
made a determination prior to the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including
its directors, independent counsel or stockholders) that the Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. If a determination shall have
been made pursuant to this Section 6.4(b) that the claimant is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding commenced pursuant to this Section 6.4(b). The Corporation
shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 6.4(b) that the
procedures and presumptions of this Article 6 are not valid, binding and enforceable and shall stipulate in such proceeding that
the Corporation is bound by all the provisions of this Article 6. |
Section 6.5 Employees
and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification,
and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any
current or former employee or agent of the Corporation to the fullest extent of the provisions of this Article 6 with respect to
the indemnification and advancement of expenses of current or former directors and officers of the Corporation.
Section 6.6 Nonexclusivity
of Rights. The rights conferred on any person by this Article 6 shall not be exclusive of any other rights that such person may
have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders
or Disinterested Directors or otherwise.
Section 6.7 Other
Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced
by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or
nonprofit enterprise.
Section 6.8 Survival;
Amendment or Repeal. Each person who was, is, or becomes a director or officer shall be deemed to have served or to have continued
to serve in such capacity in reliance upon the indemnity provided for in this Article 6. Such rights shall be deemed to have vested
at the time such person becomes or became a director or officer of the Corporation, and such rights shall continue as to an Indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors
and administrators. Any amendment, modification, alteration or repeal of this Article 6 that in any way diminishes, limits, restricts,
adversely affects or eliminates any right of an Indemnitee or his or her successors to indemnification, advancement of expenses or otherwise
shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect
to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action
or omission.
Section 6.9 Enforceability.
If any provision or provisions of this Article 6 shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
then (1) the validity, legality and enforceability of the remaining provisions of this Article 6 (including, without limitation,
each portion of any Section or paragraph of this Article 6 containing any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (2) to
the fullest extent possible, the provisions of this Article 6 (including, without limitation, each such portion of any Section or
paragraph of this Article 6 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 6.10 Insurance
for Indemnification. The Corporation may purchase and maintain, at its expense, insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the
Corporation would have the power to indemnify such person against such liability under the provisions of Section 145 of the DGCL.
To the extent that the Corporation maintains any policy or policies providing such insurance, each such current or former director or
officer, and each such agent or employee to whom rights to indemnification have been granted as provided in Section 6.5,
shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for
any such current or former director, officer, employee or agent.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Execution
of Corporate Contracts and Instruments. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the
Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute any document or instrument
in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless so authorized
or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for
any amount.
Section 7.2 Fiscal
Year. The fiscal year of the Corporation shall be the calendar year, unless otherwise determined by resolution of the Board of Directors.
Section 7.3 Seal.
The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to
time by the Board of Directors.
Section 7.4 Notices.
| (a) | Notice to Directors. Whenever under applicable law, the Certificate of Incorporation or these Bylaws
notice is required to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally
recognized delivery service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by
oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery,
orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the
United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the
records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited
with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the
Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing
on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director appearing
on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address, location
or number (as applicable) for such director appearing on the records of the Corporation. |
| (b) | Notice to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these
Bylaws notice is required to be given to any stockholder, without limiting the manner by which notice otherwise may be given effectively
to stockholders, such notice may be given (i) in writing directed to the stockholder’s mailing address, or (ii) by means
of a form of electronic transmission, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL.
A notice to a stockholder shall be deemed given as follows: (i) if sent by mail, when deposited in the United States mail, with
postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the
Corporation, (ii) if delivered by courier service, the earlier of when the notice is received or left at the stockholder’s
address, and (iii) if given by electronic mail, when directed to such stockholder’s electronic mail address (unless the stockholder
has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice
is prohibited by the DGCL to be given by electronic transmission). A notice by electronic mail must include a prominent legend that the
communication is an important notice regarding the Corporation. A notice by electronic mail will include any files attached thereto and
any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the Corporation
who is available to assist with accessing such files or information. Any notice to stockholders given by the Corporation under any provision
of the DGCL, the Certificate of Incorporation or these Bylaws provided by means of electronic transmission (other than any such notice
given by electronic mail) may only be given in a form consented to by such stockholder, and any such notice by such means of electronic
transmission shall be deemed to be given as provided by the DGCL. The terms “electronic mail,” “electronic mail address”
and “electronic signature” as used herein shall have the meanings ascribed thereto in the DGCL |
| (c) | Electronic Transmission. “Electronic transmission” means any form of communication,
not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks
or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process,
including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram. |
| (d) | Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise
may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of
the DGCL, the Certificate of Incorporation or these Bylaws shall be effective if given by a single written notice to stockholders who
share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s
consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation
within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed
to have consented to receiving such single written notice. |
| (e) | Exceptions to Notice Requirements. Whenever notice is required to be given, under the DGCL, the
Certificate of Incorporation or these Bylaws, to any person with whom communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such
notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation
is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the
fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication
is unlawful. |
Whenever notice is required
to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any stockholder
to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of
action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual
meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month
period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation
and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that
shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given.
If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address,
the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is
such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was
not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection
(1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned
as undeliverable if the notice was given by electronic transmission. The exception in subsection (1) of the first sentence of this
paragraph to the requirement that notice be given shall not be applicable to any stockholder whose electronic mail address appears on
the records of the Corporation to whom notice by electronic transmission is not prohibited by Section 232 of the DGCL.
Section 7.5 Waiver
of Notice of Meetings of Stockholders, Directors and Committees. Whenever any notice is required to be given under applicable law,
the Certificate of Incorporation, or these Bylaws, a waiver of such notice, given before or after the date of such meeting by the person
or persons entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books
of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the
express purpose of objecting at the beginning of the meeting to the transaction of any business on the ground that the meeting was not
lawfully called or convened.
Section 7.6 Interested
Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or
transaction, or solely because his, her or their votes are counted for such purpose, if: (a) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee,
and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of
the Disinterested Directors, even though the Disinterested Directors be less than a quorum; (b) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction
is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or
the stockholders. All directors, including interested directors, may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee that authorizes the contract or transaction.
Section 7.7 Form of
Records. Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or by means of, or be in the form of, any information storage device, method, or one
or more electronic networks or databases (including one or more distributed electronic networks or databases), provided that the records
so kept can be converted into clearly legible form within a reasonable time and, with respect to the stock ledger, that the records so
kept (i) can be used to prepare the list of stockholders specified in Sections 219 and 220 of the DGCL, (ii) record the information
specified in Sections 156, 159, 217(a) and 218 of the DGCL and (iii) record transfers of stock as governed by Article 8
of subtitle I of Title 6. The Corporation shall convert any records so kept into clearly legible paper form upon the request of any person
entitled to inspect the same pursuant to the DGCL.
Section 7.8 Amendment
of Bylaws.
| (a) | These Bylaws may be amended or repealed by the stockholders only by an affirmative vote of the stockholders
holding a majority in interest of all shares entitled to vote upon such amendment or repeal, voting as a single class. |
| (b) | The Board of Directors shall have the power to amend or repeal these Bylaws of, or adopt new bylaws for,
the Corporation. Any such bylaws, or any alteration, amendment or repeal of these Bylaws, may be subsequently amended or repealed by the
stockholders as provided in Section 7.8(a) of these Bylaws. |
Section 7.9 Emergency
Bylaws. In the event of any emergency, disaster or catastrophe or similar event referenced in Section 110 of the DGCL (as
the same exists or may be in effect from time to time, “Section 110”), or other similar emergency condition, irrespective
of whether a quorum of the Board of Directors or a standing committee of the Board of Directors can readily be convened for action, then
the director or directors or other persons as identified in Section 110 in attendance at the meeting shall constitute a quorum, and
such director or directors or such other persons shall have and may exercise, for and on behalf of the Corporation, all such powers and
authority as may be contemplated by Section 110 and in any manner contemplated thereby. Such director or directors and/or other
persons in attendance may further take action to appoint one or more of themselves or other directors or officers, as applicable, to membership
on any standing or temporary committees of the Board of Directors as they shall deem necessary and appropriate.
Section 7.10 Federal
Forum Selection. Unless the Corporation consents in writing
to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted
by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act
of 1933, as amended. Any person or entity purchasing or otherwise acquiring or holding any interest in any security of the Corporation
shall be deemed to have notice of and consented to the provisions of this Section 7.10.
Exhibit 4.1
ARROW BIDCO, LLC
as Issuer and
THE GUARANTORS PARTY
HERETO
————————————————
10.75% SENIOR SECURED
NOTES DUE 2025
————————————————
INDENTURE
DATED AS OF NOVEMBER
1, 2023
————————————————
DEUTSCHE BANK TRUST
COMPANY AMERICAS
as Trustee and Collateral
Agent
TABLE OF CONTENTS
| Clause |
Page |
| |
|
| Article I DEFINITIONS AND INCORPORATION
BY REFERENCE |
1 |
| |
|
| Section
1.1 Definitions |
1 |
| Section
1.2 Other Definitions |
48 |
| Section
1.3 Trust Indenture Act Term |
49 |
| Section
1.4 Rules of Construction |
49 |
| |
|
| Article II THE NOTES |
50 |
| |
|
| Section
2.1 Form and Dating |
50 |
| Section
2.2 Execution and Authentication |
51 |
| Section
2.3 Registrar; Paying Agent |
52 |
| Section
2.4 Paying Agent to Hold Money in Trust |
52 |
| Section
2.5 Holder Lists |
52 |
| Section
2.6 Book-Entry Provisions for Global Securities |
53 |
| Section
2.7 Replacement Notes |
54 |
| Section
2.8 Outstanding Notes |
55 |
| Section
2.9 Treasury Notes |
55 |
| Section
2.10 Temporary Notes |
55 |
| Section
2.11 Cancellation |
56 |
| Section
2.12 [Reserved] |
56 |
| Section
2.13 CUSIP Number |
56 |
| Section
2.14 Special Transfer Provisions |
56 |
| Section
2.15 Issuance of Additional Notes |
58 |
| |
|
| Article III REDEMPTION AND PREPAYMENT |
58 |
| |
|
| Section
3.1 Notices to Trustee |
58 |
| Section
3.2 Selection of Notes to Be Redeemed |
58 |
| Section
3.3 Notice of Redemption |
59 |
| Section
3.4 Effect of Notice of Redemption |
59 |
| Section
3.5 Deposit of Redemption Price |
60 |
| Section
3.6 Notes Redeemed in Part |
60 |
| Section
3.7 Optional Redemption |
60 |
| Section
3.8 Offer to Purchase |
61 |
| Section
3.9 [Reserved] |
62 |
| Section
3.10 Mandatory Redemption |
62 |
| Article IV COVENANTS |
62 |
| |
|
| Section
4.1 Payment of Notes |
62 |
| Section
4.2 Maintenance of Office or Agency |
62 |
| Section
4.3 Reports |
62 |
| Section
4.4 Compliance Certificate |
64 |
| Section
4.5 Taxes |
64 |
| Section
4.6 Stay, Extension and Usury Laws |
64 |
| Section
4.7 Limitation on Restricted Payments |
64 |
| Section
4.8 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries |
68 |
| Section
4.9 Limitation on Incurrence of Debt |
71 |
| Section
4.10 Limitation on Asset Sales |
72 |
| Section
4.11 Limitation on Transactions with Affiliates |
74 |
| Section
4.12 Limitation on Liens |
77 |
| Section
4.13 Limitation on Sale and Leaseback Transactions |
78 |
| Section
4.14 Offer to Purchase upon a Change of Control |
78 |
| Section
4.15 Maintenance of Properties, Corporate Existence
and Insurance |
79 |
| Section
4.16 Limited Condition Transactions |
79 |
| Section
4.17 Additional Note Guarantees |
80 |
| Section
4.18 Limitation on Creation of Unrestricted Subsidiaries |
81 |
| Section
4.19 Creation and Perfection of Certain Security
Interests After the Issue Date |
81 |
| Section
4.20 Further Assurances |
82 |
| Section
4.21 Suspension of Covenants |
82 |
| |
|
| Article V SUCCESSORS |
83 |
| |
|
| Section
5.1 Consolidation, Amalgamation, Merger, Conveyance,
Transfer or Lease |
83 |
| Section
5.2 Successor Person Substituted |
85 |
| |
|
| Article VI DEFAULTS AND REMEDIES |
85 |
| |
|
| Section
6.1 Events of Default |
85 |
| Section
6.2 Acceleration |
87 |
| Section
6.3 Other Remedies |
88 |
| Section
6.4 Waiver of Past Defaults |
89 |
| Section
6.5 Control by Majority |
89 |
| Section
6.6 Limitation on Suits |
89 |
| Section
6.7 Rights of Holders of Notes to Receive Payment |
90 |
| Section
6.8 Collection Suit by Trustee |
90 |
| Section
6.9 Trustee May File Proofs of Claim |
90 |
| Section
6.10 Priorities |
90 |
| Section
6.11 Undertaking for Costs |
91 |
| Article VII TRUSTEE |
91 |
| |
|
| Section
7.1 Duties of Trustee |
91 |
| Section
7.2 Rights of Trustee |
92 |
| Section
7.3 Individual Rights of Trustee |
94 |
| Section
7.4 Trustee’s Disclaimer |
94 |
| Section
7.5 Notice of Defaults |
94 |
| Section
7.6 [Reserved] |
94 |
| Section
7.7 Compensation and Indemnity |
94 |
| Section
7.8 Replacement of Trustee |
95 |
| Section
7.9 Successor Trustee by Merger, Etc. |
97 |
| Section
7.10 Eligibility; Disqualification |
97 |
| Section
7.11 Preferential Collection of Claims Against the
Company |
97 |
| Section
7.12 Trustee’s Application for Instructions
from the Company |
98 |
| Section
7.13 Limitation of Liability |
98 |
| Section
7.14 Collateral Agent and Holders’ Authorization
to Trustee |
98 |
| Section
7.15 Co-Trustees; Separate Trustee; Collateral
Agent |
99 |
| |
|
| Article VIII LEGAL DEFEASANCE AND COVENANT
DEFEASANCE |
100 |
| |
|
| Section
8.1 Option to Effect Legal Defeasance or Covenant
Defeasance |
100 |
| Section
8.2 Legal Defeasance |
101 |
| Section
8.3 Covenant Defeasance |
101 |
| Section
8.4 Conditions to Legal Defeasance or Covenant Defeasance |
102 |
| Section
8.5 Deposited Money and Government Securities to
Be Held in Trust; Other Miscellaneous Provisions |
103 |
| Section
8.6 Repayment to Company |
103 |
| Section
8.7 Reinstatement |
104 |
| Section
8.8 Discharge |
104 |
| |
|
| Article IX AMENDMENT, SUPPLEMENT AND WAIVER |
105 |
| |
|
| Section
9.1 Without Consent of Holders |
105 |
| Section
9.2 With Consent of Holders |
106 |
| Section
9.3 Revocation and Effect of Consents |
107 |
| Section
9.4 Notation on or Exchange of Notes |
107 |
| Section
9.5 Trustee to Sign Amendments, Etc. |
108 |
| Article X SECURITY |
108 |
| |
|
| Section
10.1 Appointment, Authorization and Rights of the
Collateral Agent |
108 |
| Section
10.2 Security Documents; Additional Collateral |
109 |
| Section
10.3 Recording, Registration and Opinions |
109 |
| Section
10.4 Releases of Collateral |
110 |
| Section
10.5 Form and Sufficiency of Release |
110 |
| Section
10.6 Possession and Use of Collateral |
111 |
| Section
10.7 Purchaser Protected |
111 |
| Section
10.8 Authorization of Actions to Be Taken by the
Collateral Agent Under the Security Documents and the Intercreditor Agreement |
111 |
| Section
10.9 Authorization of Receipt of Funds by the Trustee
Under the Security Agreement |
111 |
| Section
10.10 Powers Exercisable by Receiver or Collateral
Agent |
111 |
| |
|
| Article XI NOTE GUARANTEES |
112 |
| |
|
| Section
11.1 Note Guarantees |
112 |
| Section
11.2 [Reserved] |
113 |
| Section
11.3 Severability |
113 |
| Section
11.4 Limitation of Guarantors’ Liability |
113 |
| Section
11.5 Guarantors May Consolidate, Etc., on Certain
Terms |
113 |
| Section
11.6 Release of a Guarantor |
114 |
| Section
11.7 Benefits Acknowledged |
115 |
| Section
11.8 Future Guarantors |
115 |
| Section
11.9 Subordination of TLM Equipment, LLC’s
Guarantee |
115 |
| |
|
| Article XII MISCELLANEOUS |
116 |
| |
|
| Section
12.1 [Reserved] |
116 |
| Section
12.2 Notices |
116 |
| Section
12.3 [Reserved] |
117 |
| Section
12.4 Certificate and Opinion as to Conditions Precedent |
117 |
| Section
12.5 Statements Required in Certificate or Opinion |
118 |
| Section
12.6 Rules by Trustee and Agents |
118 |
| Section
12.7 No Personal Liability of Directors, Officers,
Employees and Stockholders |
118 |
| Section
12.8 Governing Law |
118 |
| Section
12.9 Consent to Jurisdiction; Waiver of Trial
by Jury; Service of Process |
119 |
| Section
12.10 No Adverse Interpretation of Other Agreements |
119 |
| Section
12.11 Successors |
119 |
| Section
12.12 Severability |
119 |
| Section
12.13 Counterpart Originals |
119 |
| Section
12.14 Table of Contents, Headings, Etc. |
119 |
| Section
12.15 Acts of Holders |
120 |
| Section
12.16 Security Documents |
120 |
| Section
12.17 [Reserved] |
121 |
| Section
12.18 USA Patriot Act |
121 |
| Section
12.19 Force Majeure |
121 |
| Section
12.20 Calculations |
121 |
| Section
12.21 Electronic Signatures |
121 |
| EXHIBITS |
|
|
| |
|
|
| Exhibit
A |
FORM OF 10.75%
SENIOR SECURED NOTE DUE 2025 |
| |
|
|
| Exhibit
B |
FORM OF CERTIFICATE
TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A |
| |
|
|
| Exhibit
C |
FORM OF CERTIFICATE
TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S |
| |
|
|
| Exhibit
D |
FORM OF SUPPLEMENTAL
INDENTURE TO BE DELIVERED BY ANY FUTURE GUARANTORS |
This
Indenture, dated as of November 1, 2023 is by and among Arrow Bidco, LLC, a Delaware limited liability company (the “Company”),
the Guarantors (as defined herein) and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (in such capacity
and not in its individual capacity, and together with its permitted successors and assigns in such capacity, the “Trustee”)
and as collateral agent (in such capacity and not in its individual capacity, and together with its permitted successors and assigns
in such capacity, the “Collateral Agent”).
Each
party hereto agrees as follows for the benefit of the other parties hereto and for the equal and ratable benefit of the Holders of (i) the
Company’s (as defined below) $181,446,000 10.75% Senior Secured Notes due 2025 issued on the date hereof (the “Initial
Notes”) and (ii) Additional Notes (as defined herein) issued from time to time (together with the Initial Notes and, in
each case, any Notes issued in replacement or substitution therefor in accordance with the provisions of this Indenture, the “Notes”).
Article I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.1
Definitions.
“Acquired
Debt” means Debt of a Person existing at the time such Person becomes a Restricted Subsidiary or assumed by the Company or
a Restricted Subsidiary in connection with the acquisition of assets from such Person; provided, however, that Debt
of such Person which is redeemed, defeased, retired, or otherwise repaid at the time of or immediately upon consummation of the transactions
by which such Person becomes a Restricted Subsidiary or such asset acquisition shall not be Acquired Debt.
“Additional
First Lien Claimholders” means, with respect to any Series of Additional First Lien Debt, the holders of such Debt, the
First Lien Representative with respect thereto, the First Lien Collateral Agent with respect thereto, any trustee or agent therefor under
any related Additional First Lien Loan Documents and the beneficiaries of each indemnification obligation undertaken by the Company or
any Guarantor under any related Additional First Lien Loan Documents and the holders of any other Additional First Lien Obligations secured
by the First Lien Collateral Documents for such Series of Additional First Lien Debt.
“Additional
First Lien Debt” means any Debt and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any Guarantor
other than the Initial First Lien Debt, which Debt and guarantees are secured by the First Lien Collateral (or a portion thereof) on
a basis senior to the Second Lien Obligations; provided, however, that with respect to any such Debt incurred after the
Issue Date (i) such Debt is permitted to be incurred, secured and guaranteed on such basis by each First Lien Loan Document and
Second Lien Debt Document, (ii) unless already a party with respect to that Series of Additional First Lien Debt, each of the
First Lien Representative and the First Lien Collateral Agent for the holders of such Debt shall have become party to (A) the Intercreditor
Agreement pursuant to, and by satisfying the conditions to becoming a party thereto set forth therein and (B) the First Lien Pari
Passu Intercreditor Agreement pursuant to, and by satisfying the conditions to becoming a party thereto set forth therein; provided,
further, that, if such Debt will be the initial Additional First Lien Debt incurred by the Company or any Guarantor after the
Issue Date, then the Guarantors, the Initial First Lien Representative, the Initial First Lien Collateral Agent, the First Lien Representative
for such Debt and the First Lien Collateral Agent for such Debt shall have executed and delivered the First Lien Pari Passu Intercreditor
Agreement and (iii) each of the other requirements of the Intercreditor Agreement shall have been complied with. The requirements
shall be tested only as of (x) the date of execution of such joinder agreement by the applicable Additional First Lien Collateral
Agent and Additional First Lien Representative if the Debt is incurred pursuant to a commitment entered into at the time of such joinder
agreement and (y) with respect to any later commitment or amendment to those terms to permit such Debt, as of the date of such commitment
and/or amendment, in each case, assuming such commitments are fully drawn as of such date. Additional First Lien Debt shall include any
Registered Equivalent Notes and guarantees thereof by the Guarantors issued in exchange therefor.
“Additional
First Lien Loan Documents” means, with respect to any Series of Additional First Lien Debt, the loan agreements, promissory
notes, indentures and other operative agreements evidencing or governing such Debt, any document governing reimbursement obligations
in respect of letters of credit issued pursuant to any Additional First Lien Loan Documents and the First Lien Collateral Documents securing
such Series of Additional First Lien Debt.
“Additional
First Lien Obligations” means, with respect to any Series of Additional First Lien Debt, (a) all principal, interest
(including any post-petition interest), premium (if any), penalties, fees, expenses (including fees, expenses and disbursements of agents,
professional advisors and legal counsel), indemnifications, reimbursement obligations (including in respect of letters of credit), damages
and other liabilities, and guarantees of the foregoing amounts, in each case whether or not allowed or allowable in an Insolvency or
Liquidation Proceeding, payable with respect to such Additional First Lien Debt, (b) all other amounts payable to the related Additional
First Lien Claimholders under the related Additional First Lien Loan Documents (other than in respect of any Debt not constituting Additional
First Lien Debt), (c) subject to the terms of the Intercreditor Agreement, any Hedging Obligations and Bank Product Obligations
secured under the First Lien Collateral Documents securing such Series of Additional First Lien Debt and (d) any renewals or
extensions of the foregoing.
“Additional
Second Lien Claimholders” means, with respect to any Series of Additional Second Lien Debt, the holders of such Debt,
the Second Lien Representative with respect thereto, the Second Lien Collateral Agent with respect thereto, any trustee or agent therefor
under any related Additional Second Lien Debt Documents and the beneficiaries of each indemnification obligation undertaken by the Company
or any other Guarantor under any related Additional Second Lien Debt Documents and the holders of any other Additional Second Lien Obligations
secured by the Second Lien Collateral Documents for such Series of Additional Second Lien Debt.
“Additional
Second Lien Debt” means any Debt and guarantees thereof that is incurred, issued or guaranteed by the Company and/or any Guarantor
other than the Initial Second Lien Debt and the Note Obligations, which Debt and guarantees are secured by the Second Lien Collateral
(or a portion thereof) on a basis junior to the First Lien Obligations; provided, however, that with respect to any such Debt
incurred after the Issue Date (i) the Consolidated Secured Debt Ratio of the Company and its Restricted Subsidiaries would be less
than or equal to 2.50 to 1.00, determined on a Pro Forma Basis but without netting the cash proceeds of any such Additional Second Lien
Debt to the extent not applied in such Pro Forma Basis determination, (ii) such Debt is permitted to be incurred, secured and guaranteed
on such basis by each First Lien Loan Document and Second Lien Debt Document, (iii) unless already a party with respect to that
Series of Additional Second Lien Debt, each of the Second Lien Representative and the Second Lien Collateral Agent for the holders
of such Debt shall have become party to (A) the Intercreditor Agreement and by satisfying the conditions to becoming a party thereto
set forth therein and (B) the Second Lien Pari Passu Intercreditor Agreement pursuant to and by satisfying the conditions to becoming
a party thereto set forth therein; provided, further, that, if such Debt will be the initial Additional Second Lien Debt incurred
by the Company or any other Guarantor after the Issue Date, then the Guarantors, the Initial Second Lien Representative, the Collateral
Agent, the Second Lien Representative for such Debt and the Second Lien Collateral Agent for such Debt shall have executed and delivered
the Second Lien Pari Passu Intercreditor Agreement and (iv) each of the other requirements of the Intercreditor Agreement shall
have been complied with. The requirements of the Intercreditor Agreement shall be tested only as of (x) the date of execution of
such joinder agreement by the applicable Additional Second Lien Collateral Agent and Additional Second Lien Representative if the Debt
in incurred pursuant to a commitment entered into at the time of such joinder agreement, and (y) with respect to any later commitment
or amendment to those terms to permit such Debt, as of the date of such commitment and/or amendment, in each case, assuming such commitments
are fully drawn as of such date. Additional Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by
the Guarantors issued in exchange therefor.
“Additional
Second Lien Debt Documents” means, with respect to any Series of Additional Second Lien Debt, the loan agreements, promissory
notes, indentures and other operative agreements evidencing or governing such Debt, any document governing reimbursement obligations
in respect of letters of credit issued pursuant to any Additional Second Lien Debt Documents and the Second Lien Collateral Documents
securing such Series of Additional Second Lien Debt.
“Additional
Second Lien Obligations” means, with respect to any Series of Additional Second Lien Debt, (a) principal, interest
(including without limitation any post-petition interest), premium (if any), penalties, fees, expenses (including, without limitation,
fees, expenses and disbursements of agents, professional advisors and legal counsel), indemnifications, reimbursement obligations (including
in respect of letters of credit), damages and other liabilities, and guarantees of the foregoing amounts, in each case whether or not
allowed or allowable in an Insolvency or Liquidation Proceeding, payable with respect to such Additional Second Lien Debt, (b) all
other amounts payable to the related Additional Second Lien Claimholders under the related Additional Second Lien Debt Documents (other
than in respect of any Debt not constituting Additional Second Lien Debt), (c) subject to the terms of the Intercreditor Agreement,
any Hedging Obligations and Bank Product Obligations secured under the Second Lien Collateral Documents securing such Series of
Additional Second Lien Debt and (d) any renewals or extensions of the foregoing.
“Additional
Notes” means additional Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.2 and
4.9 hereof, of the same series as the Initial Notes.
“Affiliate”
of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, “control” when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings that correspond to
the foregoing.
“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.
“Applicable
Premium” means, with respect to any Note on any applicable redemption date, or March 15, 2024, if the Stated Maturity
of the Notes is shortened because the Existing Notes remain outstanding, as calculated by the Company, the greater of:
| (1) | 1.00%
of the then outstanding principal amount of the Note; and |
| (a) | the
present value at such redemption date or shortened maturity of (i) the redemption price
of the Note at September 15, 2024 (such redemption price being set forth in the table
appearing in Section 3.7(a)), plus (ii) all required interest payments due on the
Note through September 15, 2024 (excluding accrued but unpaid interest to such redemption
date or shortened maturity), in each case, computed using a discount rate equal to the Treasury
Rate as of such redemption date or shortened maturity plus 50 basis points; over |
| (b) | the
then outstanding principal amount of the Note. |
“Asset
Acquisition” means:
| (a) | an Investment
by the Company or any of its Restricted Subsidiaries in any other Person pursuant to which
such Person shall become a Restricted Subsidiary (including the redesignation of an Unrestricted
Subsidiary), or shall be merged with or into the Company or any of its Restricted Subsidiaries;
or |
| (b) | the acquisition
by the Company or any of its Restricted Subsidiaries of the assets of any Person (other than
the Company or any of its Restricted Subsidiaries) which constitute all or substantially
all of the assets of such Person, any division or line of business of such Person or any
other properties or assets of such Person other than in the ordinary course of business. |
“Asset
Sale” means:
| (a) | the sale,
lease, transfer, conveyance or other disposition (each referred to for the purposes of this
definition as a “disposition”) of any assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course in any single transaction or series of related transactions;
provided that the disposition of all or substantially all of the consolidated assets
of the Company and its Restricted Subsidiaries taken as a whole, will be governed by Section 4.14
and/or Section 5.1 and not by Section 4.10; and |
| (b) | the issue
or sale by the Company or any of its Restricted Subsidiaries of Equity Interests in any of
the Company’s Restricted Subsidiaries (other than Equity Interests in the Company or
directors’ qualifying shares or shares or interests required to be held by foreign
nationals pursuant to local law). |
provided,
however, that the term “Asset Sale” shall exclude:
| (a) | any disposition
of Equity Interests, property or assets, the gross proceeds of which (exclusive of indemnities)
do not exceed in any one or related series of transactions $15.0 million; |
| (b) | dispositions
of (i) cash, (ii) Cash Equivalents or (iii) other Investments in existence
on the Original Issue Date that are properly characterized under GAAP as cash and cash equivalents,
short-term investments, restricted cash or long-term investments; |
| (c) | the disposition,
abandonment or lease of equipment, products, services, and inventory in the ordinary course
of business and any disposition or abandonment of damaged, worn-out, used, surplus, obsolete
or permanently retired assets or assets that, in the good faith judgment of the Company,
are no longer used or useful in its business; |
| (d) | the sale
and leaseback of any assets within 90 days of the acquisition thereof; |
| (e) | a Restricted
Payment that is permitted by Section 4.7 or a Permitted Investment; |
| (f) | any trade-in
of equipment in exchange for other equipment in the ordinary course of business; |
| (g) | the Incurrence
of a Lien otherwise than in contravention of Section 4.12 (and the exercise of any power
of sale or other remedy thereunder); |
| (h) | leases,
assignments, licenses or subleases in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries and are otherwise not prohibited under this Indenture; |
| (i) | dispositions
(i) by a Restricted Subsidiary to the Company or (ii) by the Company or a Restricted
Subsidiary to a Restricted Subsidiary; |
| (j) | issuances
of Equity Interests by a Restricted Subsidiary to the Company or to a Restricted Subsidiary; |
| (k) | dispositions
of accounts receivable, including in connection with the collection or compromise thereof; |
| (l) | any surrender
or waiver of contract rights or the settlement, release, or surrender of contract, tort,
intangible claims or other claims; |
| (m) | licensing
of intellectual property; |
| (n) | dispositions
of accounts receivable, or a fractional undivided interest therein, by a Receivables Subsidiary
in a Qualified Receivables Transaction; |
| (o) | dispositions
of accounts receivable, chattel paper and assets related thereto, including collateral securing
such accounts receivable, contracts and contract rights, purchase orders, security interests,
financing statements and other documentation, and all guarantees, warranties or other documentation
or other obligations in respect of such accounts receivable, and other assets which are customarily
transferred in connection with asset securitization transactions involving receivables similar
to such accounts receivable (and any collections or proceeds thereof), in each case, to a
Receivables Subsidiary pursuant to a Qualified Receivables Transaction; |
| (p) | the unwinding
of any Hedging Obligations; |
| (q) | any sale
of Equity Interests in, or Debt or other securities of, an Unrestricted Subsidiary; |
| (r) | the issuance
by the Company or any of its Restricted Subsidiaries of Disqualified Stock that is permitted
by Section 4.9; |
| (s) | dispositions
to the extent required by, or made pursuant to, customary buy/sell arrangements between the
joint venture parties set forth in joint venture agreements and similar binding agreements; |
| (t) | dispositions
to the extent made pursuant to casualty or condemnation events or business interruption;
or |
| (u) | dispositions
made to comply with any order of any agency of the U.S. federal government or any state authority
or other regulatory body or any applicable law. |
For
purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset
Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is part thereof is effected.
“Asset
Sale Offer” means an Offer to Purchase required to be made by the Company pursuant to Section 4.10 to all Holders.
“Attributable
Debt” in respect of a Sale and Leaseback Transaction means, at the time of determination, the present value (discounted at
the rate of interest implicit in such transaction, determined in accordance with GAAP) of the obligations of the lessee for net rental
payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such
lease has been or may, at the option of the lessor, be extended); provided, however, that if such Sale and Leaseback
Transaction results in a Capital Lease Obligation, the amount of Debt represented thereby will be determined in accordance with the definition
of “Capital Lease Obligation.”
“Available
Excluded Contribution Amount” means the aggregate amount of cash, Cash Equivalents or the Fair Market Value of other assets
or property (as reasonably determined by the Company) received by Holdings (and promptly contributed by Holdings to the Company) after
the Original Issue Date from (without duplication): (i) contributions in respect of Equity Interests of Holdings other than Disqualified
Stock (other than any amounts received from the Company or any of its Restricted Subsidiaries), and (ii) the sale of Equity Interests
of Holdings (other than (x) to the Company or any of its Restricted Subsidiaries, (y) pursuant to any management equity plan,
stock option plan or any other management or employee benefit plan or (z) Disqualified Stock); provided that:
| (1) | any such
amounts received shall not increase the amount available for making Restricted Payments to
the extent the Company or its Restricted Subsidiaries Incurred Debt in reliance thereon,
and such Debt (or Refinancing Debt in respect thereof) remains outstanding; and |
| (2) | any such
amounts received shall be excluded for purposes of Debt permitted to be Incurred under Section 4.9
to the extent the Company or any of its Restricted Subsidiaries make a Restricted Payment
in reliance thereon. |
“Bank
Product Obligations” means, all obligations and liabilities (whether direct or indirect, absolute or contingent, due or to
become due or now existing or hereafter incurred) of the Company, any Guarantor or any of their respective Subsidiaries, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or
in connection with any treasury, investment, depository, clearing house, wire transfer, cash management or automated clearing house transfers
of funds services or any related services, to any Person permitted to be a secured party in respect of such obligations under the applicable
First Lien Loan Documents or Second Lien Debt Documents.
“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor
statute.
“Bankruptcy
Law” means Title 11 of the Bankruptcy Code, as amended, or any other
United States federal or state bankruptcy, insolvency or similar law, fraudulent transfer or conveyance statute and any related case
law.
“Board
of Directors” means (i) with respect to the Company or any of its Restricted Subsidiaries, its board of directors or any
duly authorized committee thereof; (ii) with respect to a corporation, the board of directors of such corporation or any duly
authorized committee thereof; and (iii) with respect to any other entity, the board of directors or similar body of the general
partner or managers of such entity or any duly authorized committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or any Restricted
Subsidiary to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Borrowing
Base” means, at any time, an amount equal to the sum (expressed in U.S. Dollars) of, without duplication, 85% of the book value
of the accounts receivable of the Company and the Guarantors and (2) 95% of the book value of the inventory and rental equipment
(which shall include, without limitation, value-added products) of the Company and the Guarantors, in each case calculated on a Pro Forma
Basis and in accordance with GAAP.
“Business
Day” means any day excluding Saturday, Sunday and any other day that is a legal holiday under the laws of the State of New
York or is a day which banking institutions located in such state are closed.
“Capital
Lease Obligation” means, as to any Person, the obligation of such Person under a lease that is required to be classified and
accounted for as a capital lease or finance lease obligation under GAAP as in effect on the Original Issue Date; and the amount
of such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be terminated or prepaid by the lessee without payment of a penalty. For purposes of Section 4.12, a Capital Lease Obligation
shall be deemed secured by a Lien on the property being leased.
“Capital
Stock” means:
| (1) | in the
case of a corporation, corporate stock or shares; |
| (2) | in the
case of an association or business entity other than a corporation, any and all shares, interests,
participations, rights or other equivalents (however designated) similar to corporate stock; |
| (3) | in the
case of a partnership or limited liability company, partnership or membership interests (whether
general or limited); and |
| (4) | any other
interest or participation that confers on a Person the right to receive a share of the profits
and losses of, or distributions of assets of the issuing Person. |
“Cash
Equivalents” means:
| (a) | U.S. Dollars,
Canadian Dollars, Euros or such other foreign currencies held by the Company or its Restricted
Subsidiaries from time to time in the ordinary course of business; |
| (b) | securities
with maturities of two years or less from the date of acquisition issued or unconditionally
guaranteed by (i) the United States government, or by any state of the United States
of America, or, in each case, by any political subdivision or taxing authority thereof or
(ii) the Canadian government or any province, territory, political subdivision, agency
or instrumentality thereof; |
| (c) | domestic
or foreign certificates of deposit, demand deposits and Eurodollar time deposits with maturities
of two years or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding two years and overnight bank deposits, in each case, issued by lender under
the ABL Credit Facility or any other bank having combined capital and surplus in excess of
$500.0 million (in the case of domestic banks); |
| (d) | repurchase
obligations for underlying securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications specified in clause
(c) above or securities dealers of recognized national standing; |
| (e) | commercial
paper, marketable short-term money market and similar securities at the time of acquisition,
having one of the two highest ratings obtainable from Moody’s Investors Service, Inc.
or Standard & Poor’s Rating Services (or, if at any time neither S&P nor
Moody’s shall be rating such obligations, an equivalent rating from another nationally
recognized rating service); |
| (f) | marketable
short-term money market and similar funds having (i) assets in excess of $250.0 million
or (ii) a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if
at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent
rating from another nationally recognized rating service); |
| (g) | Debt or
preferred stock issued by Persons with a rating of A- or higher from S&P or A3 or higher
from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable
rating of another rating agency) with maturities of twelve (12) months or less from the date
of acquisition; |
| (h) | bills
of exchange issued in the United States or Canada eligible for rediscount at the relevant
central bank and accepted by a bank (or any dematerialized equivalent); |
| (i) | Investments
with average maturities of twelve (12) months or less from the date of acquisition in money
market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the
equivalent thereof) or better by Moody’s; |
| (j) | investment
funds investing at least 95% of their assets in securities which are one or more of the types
of securities described in clauses (b) through (i) above; and |
| (k) | in the
case of Investments by any Foreign Subsidiary or Investments made in a country outside Canada
and the United States, Cash Equivalents shall also include (i) direct obligations of
the sovereign nation (or any agency thereof) in which such Foreign Subsidiary is organized
and is conducting business or where such Investment is made, or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency thereof), in each case
maturing within a two years after such date and having, at the time of the acquisition thereof,
a rating equivalent to one of the two highest ratings from either S&P or Moody’s,
(ii) investments of the type and maturity described in clauses (b) through (j) above
of foreign obligors, which Investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable foreign rating agencies,
(iii) shares of money market mutual or similar funds which invest exclusively in assets
otherwise satisfying the requirements of this definition (including this clause (iii)) and
(iv) other short-term investments utilized by such Foreign Subsidiaries in accordance
with normal investment practices for cash management in investments analogous to the foregoing
investments in clauses (b) through (j). |
“Cash
Management Agreements” means any agreement providing for treasury, depository, purchasing card or cash management services,
including in connection with any automated clearing house transfer of funds or any similar transaction.
“Certificated
Notes” means Notes that are in the form of Exhibit A attached hereto, including the applicable legend or legends
set forth in Exhibit A.
“Change
of Control” means the occurrence of any of the following events:
| (a) | any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), becoming the ultimate “beneficial owner” (as such term is used
in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause
(a), such person or group shall be deemed to have “beneficial ownership” of all
shares that any such person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50%
of the Voting Stock in the Company unless the Permitted Holders otherwise have the right
(pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate
or appoint a majority of the directors of the Company; |
| (b) | the Company
or any Restricted Subsidiary sells, conveys, transfers or leases (either in one transaction
or a series of related transactions) all or substantially all of the Company’s and
its Restricted Subsidiaries’ assets (determined on a consolidated basis) to any Person
other than the Company, a Restricted Subsidiary of the Company or any Permitted Holder; |
| (c) | the Company
consolidates with, or merges with or into, any Person (other than a Permitted Holder), or
any Person (other than a Permitted Holder) consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where (i) the Voting Stock of the
Company outstanding immediately prior to such transaction constitutes or is converted into
or exchanged for a majority of the outstanding shares of the Voting Stock of such surviving
or transferee Person (immediately after giving effect to such transaction) or (ii) one
or more Permitted Holders becomes a beneficial owner, directly or indirectly, of more than
50% of the outstanding shares of such Voting Stock (immediately after giving effect to such
transaction); or |
| (d) | Holdings
ceases to own 100% of the outstanding Capital Stock of the Company. |
Notwithstanding
the foregoing, a transaction will not be deemed to involve a Change of Control (1) if (a) the Company becomes a direct or indirect
wholly-owned Subsidiary of a company and (b) the direct or indirect holders of the Voting Stock of the ultimate parent holding company
immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior
to that transaction or (2) solely as a result of a Permitted Holder ceasing to be a Permitted Holder as a result of the disposition
of Voting Stock of the Company or any direct or indirect parent thereof by any other Permitted Holder.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time and the regulations promulgated thereunder.
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Common
Stock” means with respect to any Person, any and all shares, interest or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of such Person’s common stock, whether or not outstanding on the Issue Date, and includes
all series and classes of such common stock.
“Company”
has the meaning set forth in the preamble hereto until a successor replaces it in accordance with the applicable provisions of this Indenture
and, thereafter, means the successor.
“Consolidated
EBITDA” means, with respect to the Company and its Restricted Subsidiaries for any period:
| (i) | the sum,
without duplication, of the amounts for such period, taken as a single accounting period,
of: |
| (a) | Consolidated
Net Income; |
| (b) | Consolidated
Income Tax Expense; |
| (c) | Consolidated
Interest Expense for such period (but including items excluded from the definition of “Consolidated
Interest Expense” pursuant to clauses (1)(i) through (1)(ix) thereof), to
the extent the same were deducted (and not added back) in calculating such Consolidated Net
Income |
| (d) | depreciation
and amortization of the Company and the Restricted Subsidiaries for such period to the extent
the same were deducted (and not added back) in computing Consolidated Net Income; |
| (e) | any expenses
or charges (other than depreciation or amortization expenses) related to any equity offering
(including by any direct or indirect parent of the Company), acquisition, disposition, recapitalization
or the Incurrence of Debt permitted to be Incurred by this Indenture (including a refinancing
of any Credit Facilities) (whether or not successful), and any amendment or modification
to the terms of any such transaction including such fees, expenses or charges related to
(i) the Original Transactions or (ii) any amendment or other modification of the
Credit Facilities or this Indenture, and, in each case, deducted (and not added back) in
computing Consolidated Net Income; |
| (f) | the amount
of any restructuring charges or reserves, business optimization expenses or non-recurring
integration costs deducted (and not added back) in such period in computing Consolidated
Net Income, including any one-time costs Incurred in connection with acquisitions after the
Original Issue Date and costs and charges related to the closure and/or consolidation of
facilities, severance, relocation costs, integration and facilities opening costs, transition
costs and other restructuring costs; |
| (g) | any other
non-cash charges, including any write offs or write downs (other than write offs or write
downs on accounts or chattel paper of the Company), reducing Consolidated Net Income for
such period (and not added back) (provided that if any such non-cash charges represent
an accrual or reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated EBITDA in such
future period to such extent, and excluding amortization of a prepaid cash item that was
paid in a prior period); |
| (h) | the amount
of any non-controlling interest expense consisting of Subsidiary income attributable to minority
Equity Interests of third parties in any non-wholly-owned Subsidiary of the Company deducted
(and not added back) in such period in the calculation of Consolidated Net Income; |
| (i) | the amount
of loss or discount on sale of receivables and related assets to a Receivables Subsidiary
in connection with a Qualified Receivables Transaction deducted (and not added back) in such
period in the calculation of Consolidated Net Income; |
| (j) | any costs
or expenses Incurred by the Company or a Restricted Subsidiary pursuant to any management
equity plan or stock option plan or any other management or employee benefit plan or agreement
or any stock subscription or shareholder agreement, to the extent that such costs or expenses
are funded with cash proceeds contributed to the capital of the applicable Person or Net
Cash Proceeds of an issuance of Capital Stock or other Equity Interests of the applicable
Person, in each case to the extent deducted (and not added back) in such period in the calculation
of Consolidated Net Income; |
| (k) | the amount
of expenses relating to payments made to option holders of Holdings or any other parent (direct
or indirect) of the Company in connection with, or as a result of, any distribution being
made to shareholders of such Person or its parent, which payments are being made to compensate
such option holders as though they were shareholders at the time of, and entitled to share
in, such distribution, in each case to the extent permitted under this Indenture and to the
extent deducted (and not added back) in such period in the calculation of Consolidated Net
Income; |
| (l) | costs
associated with, or in anticipation of, or preparation for, compliance with the requirements
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith or other enhanced accounting functions and Public Company Costs, in each case to
the extent deducted (and not added back) in such period in the calculation of Consolidated
Net Income; |
| (m) | costs
of surety bonds Incurred in such period in connection with financing activities to the extent
deducted (and not added back) in such period in the calculation of Consolidated Net Income; |
| (n) | payments
paid or accrued during such period in respect of purchase price holdbacks or earn-outs of
the Company and its Restricted Subsidiaries (other than Debt), in each case to the extent
deducted (and not added back) in such period in the calculation of Consolidated Net Income; |
| (o) | stock
compensation expense recognized in accordance with GAAP under Accounting Standards Codification
No. 718 and any successor pronouncements; |
| (p) | transaction
costs incurred related to a business combination recognized in accordance with GAAP under
Accounting Standards Codification No. 805 and any successor pronouncements, regardless
of whether the relevant transaction is consummated; and |
| (q) | amortization
of capitalized information system implementation costs recognized in accordance with GAAP
under Accounting Standards Codification No. 350-40 and any successor pronouncements; |
| (ii) | less (without duplication) non-cash gains increasing
Consolidated Net Income of the Company and the Restricted Subsidiaries for such period, excluding any non-cash gains to the extent
they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; provided
that, to the extent non-cash gains are deducted pursuant to this clause (ii) for any previous period and not otherwise added
back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements
resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already
included therein. |
“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person for such Person’s
most recent Four-Quarter Period for which internal financial statements are available immediately preceding the date of the transaction
(the “Transaction Date”) giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio to the
Consolidated Fixed Charges of such Person for the Four-Quarter Period. For purposes of this definition, Consolidated EBITDA and Consolidated
Fixed Charges shall be calculated on a Pro Forma Basis.
In
calculating Consolidated Interest Expense for purposes of determining the denominator (but not the numerator) of this Consolidated Fixed
Charge Coverage Ratio:
| (a) | interest
on outstanding Debt determined on a fluctuating basis as of the Transaction Date and which
will continue to be so determined thereafter (other than working capital borrowings under
any revolving credit facility incurred in the ordinary course of business) shall be deemed
to have accrued at the average rate per annum on such Debt during the Four-Quarter Period
(or if less, such period of time that it was outstanding); |
| (b) | if interest
on any Debt (other than working capital borrowings under any revolving credit facility incurred
in the ordinary course of business) actually Incurred on the Transaction Date may optionally
be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rates, then the interest rate in effect on the Transaction
Date will be deemed to have been in effect during the Four-Quarter Period; and |
| (c) | notwithstanding
clause (a) or (b) above, interest on Debt determined on a fluctuating basis, to
the extent such interest is covered by agreements relating to Hedging Obligations, shall
be deemed to accrue at the rate per annum resulting after giving effect to the operation
of these agreements. |
“Consolidated
Fixed Charges” means, with respect to any Person for any period, the sum of, without duplication, the amounts for such period
of:
| (i) | Consolidated
Interest Expense; and |
| (ii) | all dividends
and other distributions paid or accrued during such period in respect of Disqualified Stock
of such Person and its Restricted Subsidiaries (other than dividends paid in Equity Interests
not constituting Disqualified Stock), in each case, determined on a consolidated basis in
accordance with GAAP. |
“Consolidated
Income Tax Expense” means, with respect to the Company and its Restricted Subsidiaries for any period, provision for taxes
based on income or profits or capital, including, without limitation, foreign, U.S. federal, state, franchise, excise and similar taxes
and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of the Company
and the Restricted Subsidiaries paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income
and any payments to any direct or indirect parent of the Company in respect of any such taxes.
“Consolidated
Interest Expense” means, with respect to the Company and its Restricted Subsidiaries for any period the sum, without duplication,
of:
| (i) | consolidated
interest expense of the Company and the Restricted Subsidiaries for such period, to the extent
such expense was deducted (and not added back) in computing Consolidated Net Income (including
(a) amortization of original issue discount resulting from the issuance of Debt at less
than par, other than with respect to Debt issued in connection with the Transactions, (b) all
commissions, discounts and other fees and charges owed with respect to letters of credit
or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest
expense attributable to the movement in the mark to market valuation of Hedging Obligations
or other derivative instruments pursuant to GAAP), (d) the interest component of Capital
Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations
with respect to Debt, and excluding (i) penalties and interest relating to taxes, (ii) any
“additional interest” relating to customary registration rights with respect
to any securities, (iii) non-cash interest expense attributable to movement in mark-to-market
valuation of Hedging Obligations or other derivatives (in each case permitted hereunder under
GAAP), (iv) interest expense attributable to a direct or indirect parent thereof resulting
from push-down accounting, (v) accretion or accrual of discounted liabilities not constituting
Debt, (vi) any expense resulting from the discounting of Debt in connection with the
application of recapitalization or purchase accounting, (vii) amortization of deferred
financing fees, debt issuance costs, commissions, fees and expenses and, with respect to
Debt issued in connection with the Transactions, original issue discount, (viii) any
expensing of bridge, commitment and other financing fees and (ix) commissions, discounts,
yield and other fees and charges (including any interest expense) related to any Qualified
Receivables Transaction); plus |
| (ii) | consolidated
capitalized interest of the Company and the Restricted Subsidiaries for such period, whether
paid or accrued; less |
| (iii) | interest
income of the Company and the Restricted Subsidiaries for such period. |
For
purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined
by such Person to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Consolidated
Net Income” means, with respect to the Company and its Restricted Subsidiaries for any period, the aggregate of the consolidated
net income (or loss) attributable to the Company and its Restricted Subsidiaries for such period, as determined in accordance with GAAP
and before any deduction in respect of any dividends on preferred stock, adjusted by:
| (A) | excluding,
to the extent included in calculating such net income, without duplication |
| (i) | any after-tax
effect of (a) extraordinary gains, losses or charges (including all fees and expenses
relating thereto) or expenses and (b) non-recurring or unusual gains, losses or charges
(including all fees and expenses relating thereto) or expenses (including the Transaction
Expenses); |
| (ii) | the cumulative
effect of a change in accounting principles during such period and changes as a result of
the adoption or modification of accounting policies; |
| (iii) | any
after-tax effect of income (loss) from disposed, abandoned, transferred, closed or discontinued
operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred,
closed or discontinued operations or fixed assets; |
| (iv) | any after-tax
effect of gains or losses (less all fees and expenses relating thereto) attributable to asset
dispositions or abandonments or the sale or other disposition of any Capital Stock of any
Person other than in the ordinary course of business, as determined in good faith by the
Company; |
| (v) | the net
income for such period of any Non-Recourse Subsidiary, any Person that is not a Subsidiary,
or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting;
provided that Consolidated Net Income of the Company shall be increased by the amount
of dividends or distributions or other payments that are actually paid in cash (or to the
extent converted into cash or Cash Equivalents) by such Non-Recourse Subsidiary or Person
that is not a Subsidiary or Unrestricted Subsidiary, as the case may be, to the Company or
any Restricted Subsidiary thereof in respect of such period; |
| (vi) | effects
of adjustments (including the effects of such adjustments pushed down to the Company and
its Restricted Subsidiaries) in the inventory, property and equipment, software and other
intangible assets and in process research and development, deferred revenue and debt line
items in the Company’s consolidated financial statements pursuant to GAAP resulting
from the application of purchase accounting in relation to the Original Transactions or any
consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes; |
| (vii) | any
after-tax effect of income (loss) from the early extinguishment of Debt or Hedging Obligations
or other derivative instruments (including deferred financing costs written off and premiums
paid); |
| (viii) | any
impairment charge, asset write-off or write-down, including impairment charges or asset write-offs
or write-downs related to intangible assets, long-lived assets, Investments in debt
and equity securities or as a result of a change in law or regulation, the amortization of
intangibles, and the effects of adjustments to accruals and reserves during a prior period
relating to any change in the methodology of calculating reserves for returns, rebates and
other chargebacks (including government program rebates), in each case, pursuant to GAAP; |
| (ix) | any (a) non-cash
compensation charge or expense related to the grants of stock appreciation or similar rights,
phantom equity, stock options, restricted stock or other rights and (b) income (loss)
attributable to deferred compensation plans or trusts; |
| (x) | accruals
and reserves that are established within twelve (12) months after the Original Issue Date
that are so required to be established as a result of the Original Transactions (or within
twelve (12) months after the closing of any acquisition that are so required to be established
as a result of such acquisition) in accordance with GAAP or charges, accruals, expenses and
reserves as a result of adoption or modification of accounting policies in accordance with
GAAP; |
| (xi) | any net
gain or loss resulting in such period from currency transaction or translation gains or losses
related to currency remeasurements and (b) any income (or loss) related to currency
gains or losses related to Debt, intercompany balance sheet items and Hedging Obligations;
and |
| (xii) | any
deferred tax expense associated with tax deductions or net operating losses arising as a
result of the Transactions, or the release of any valuation allowance related to such item;
and |
| (B) | including,
to the extent not already accounted for, and notwithstanding anything to the contrary in
the foregoing, (i) the amount of proceeds received during such period from business
interruption insurance in respect of insured claims for such period, (ii) the amount
of proceeds as to which the Company has determined there is reasonable evidence it will be
reimbursed by the insurer in respect of such period from business interruption insurance
(with a deduction for any amounts included to the extent not so reimbursed within 365 days)
and (iii) reimbursements received of any expenses and charges that are covered by indemnification
or other reimbursement provisions in connection with any Investment or any sale, conveyance,
transfer or other disposition of assets, in each case to the extent permitted under this
Indenture. |
“Consolidated
Secured Debt Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Debt of the Company and
its Restricted Subsidiaries that is secured by a Lien on the assets of the Company or any of its Restricted Subsidiaries on the date
of determination, to (b) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent Four-Quarter Period,
calculated on a Pro Forma Basis.
“Consolidated
Total Assets” means the total consolidated assets of the Company and its Restricted Subsidiaries on a consolidated basis determined
in accordance with GAAP, as shown on the most recent consolidated balance sheet of the Company; provided that, for purposes of
calculating “Consolidated Total Assets” for purposes of testing the covenants under this Indenture in connection with any
transaction, the total consolidated assets of the Company and its Restricted Subsidiaries shall be calculated on a Pro Forma Basis for
the most recent Four-Quarter Period.
“Consolidated
Total Debt” means, as of any date of determination, the aggregate principal amount of indebtedness of the Company and its Restricted
Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting
of indebtedness resulting from the application of purchase accounting in connection with any Asset Sale or Asset Acquisition), consisting
of indebtedness for borrowed money, Capital Lease Obligations and debt obligations evidenced by promissory notes or similar instruments.
“Consolidated
Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Debt of the Company
and its Restricted Subsidiaries on the date of determination, to (b) Consolidated EBITDA of the Company and its Restricted Subsidiaries
for the most recent Four-Quarter Period prior to such date for which the Company has internal financial statements available, in each
case, calculated on a Pro Forma Basis.
“Corporate
Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which
office at the Issue Date is located at 1 Columbus Circle, 17th Floor, Mail Stop: NYC01-1710, New York, New York 10019, or such other
address as the Trustee may designate from time to time by written notice to the Holders and the Company, or the designated corporate
trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).
“Credit
Facilities” means (i) that certain ABL Credit Agreement, dated as of the Original Issue Date (as amended by the First
Amendment, dated as of February 1, 2023, by the Second Amendment, dated as of August 10, 2023, by the Third Amendment, dated
as of October 12, 2023, and as further amended, restated, supplemented or otherwise modified from time to time, the “ABL
Credit Facility”), by and among the Company, the other loan parties party thereto, Holdings, Bank of America, N.A., as administrative
agent and collateral agent, and the other lenders named therein, including any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case as amended, restated, supplemented, modified, renewed, refunded, replaced
or refinanced from time to time, including any agreement extending the maturity thereof, refinancing, replacing, supplementing or otherwise
restructuring all or any portion of the Debt thereunder or increasing or supplementing the amount loaned or issued thereunder or altering
the maturity thereof whether pursuant to a credit agreement, indenture or other debt facility (any of the foregoing, an “Amendment”)
and (ii) whether or not the financing agreement referred to in clause (i) remains outstanding, if designated by the Company
to be included in the definition of “Credit Facilities,” one or more (A) debt facilities or commercial paper facilities,
providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to a
Receivables Subsidiary or other special purpose entities formed to borrow from lenders against such receivables) or letters of credit,
(B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank
guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Debt, in each case, with the same
or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced,
restated, replaced or refunded in whole or in part from time to time; provided that the Company and the Restricted Subsidiaries,
taken as a whole, do not incur Debt pursuant to any Amendment defined in clause (i) or any Debt incurred under clause (ii) in
an aggregate principal amount at any time outstanding in excess of the maximum aggregate principal amount of Debt permitted to be incurred
pursuant to clause (i) of the definition of “Permitted Debt.”
“Custodian”
means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator or similar official under Bankruptcy
Law or any other person with like powers.
“Debt”
means at any time (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person,
or non-recourse, the following: (i) all indebtedness of such Person for money borrowed; (ii) all obligations of such Person
evidenced by bonds, debentures, notes, or other similar instruments; (iii) all obligations of such Person with respect to letters
of credit (except letters of credit that are (x) secured by cash or Cash Equivalents, (y) issued under any Credit Facility
or (z) securing obligations, other than obligations referred to in clauses (i), (ii) and (v), entered into in the ordinary
course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the 10th Business Day following payment on the letter of credit), bankers’ acceptances or similar facilities
issued for the account of such Person; (iv) indebtedness for the deferred purchase price of property and all obligations created
or arising under any conditional sale or other title retention agreement with respect to property or assets acquired by such Person(even
if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of
such property or assets), in each case, excluding any trade payables or other current liabilities incurred in the ordinary course of
business; (v) all Capital Lease Obligations (including Attributable Debt with regards to Sale and Leaseback Transactions) of
such Person (but excluding obligations under operating leases); (vi) the maximum fixed redemption or repurchase price of Disqualified
Stock in such Person at the time of determination; (vii) any Hedging Obligations of such Person at the time of determination
(but taking into account only the mark-to-market value or, if any actual amount is due as a result of the termination or close-out of
such transaction, that amount); and (viii) all obligations of the types referred to in clauses (i) through (vii) of
this definition of another Person, the payment of which (A) such Person has Guaranteed or (B) is secured by (or the holder
of such Debt has an existing right, whether contingent or otherwise, to be secured by) any Lien upon the property or other assets of
such Person, even though such Person has not assumed or become liable for the payment of such Debt, in each case if and to the extent
that any of the foregoing (other than clauses (iii) and (viii) of this definition) would appear as a liability upon a balance
sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP. For purposes of the foregoing: (a) the
maximum fixed repurchase price of any Disqualified Stock that does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Stock as if such Disqualified Stock were repurchased on any date on which Debt shall be required
to be determined pursuant to this Indenture; provided, however, that, if such Disqualified Stock is not then permitted
to be repurchased, the repurchase price shall be the book value of such Disqualified Stock; (b) the amount outstanding at any
time of any Debt issued with original issue discount is the principal amount of such Debt less the remaining unamortized portion of the
original issue discount of such Debt at such time as determined in conformity with GAAP; (c) the amount of any Debt described
in clause (ix)(A) above shall be the maximum liability under any such Guarantee; (d) the amount of any Debt described
in clause (ix)(B) above shall be the lesser of (I) the maximum amount of the obligations so secured and (II) the Fair
Market Value of such property or other assets; and (e) interest, fees, premium, and expenses and additional payments, if any,
will not constitute Debt.
Notwithstanding
the foregoing, in connection with the purchase or sale by the Company or any of its Restricted Subsidiaries of any assets or business,
the term “Debt” will exclude (x) customary indemnification obligations, (y) post-closing payment adjustments to
which the other party may become entitled to the extent such payment is determined by a final closing balance sheet or such payment is
otherwise contingent and (z) trade payments and accrued expenses, in each case arising in the ordinary course of business, and deferred
or prepaid revenue; provided that the amount of such payment would not be required to be reflected on the face of a balance
sheet prepared in accordance with GAAP.
The
amount of Debt of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving rise to the obligations, of any contingent obligations
at such date.
“Default”
means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 as the
Depositary with respect to the Notes, until a successor shall have been appointed pursuant to Section 2.6(b), and, thereafter, “Depositary”
shall mean or include such successor.
“Designated
Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or any of its Restricted
Subsidiaries in connection with an Asset Sale that is designated as “Designated Non-cash Consideration” pursuant to an Officer’s
Certificate setting forth the basis of determining the Fair Market Value thereof.
“Disqualified
Stock” means, with respect to any Person, any Capital Stock that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder) or upon the happening of any event:
| (1) | matures
or is mandatorily redeemable under a sinking fund obligation or otherwise; |
| (2) | is convertible
or exchangeable at the option of the holder thereof for Debt or Disqualified Stock (excluding
Capital Stock convertible or exchangeable solely at the option of the Company or any of its
Subsidiaries); or |
| (3) | is redeemable,
in whole or in part, at the option of the holder thereof; |
in
each case on or prior to the day that is 91 days after the Stated Maturity of the Notes; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such
Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control”
occurring on or prior to the 91st day after the Stated Maturity of the Notes will not constitute Disqualified Stock if the “asset
sale” or “change of control” provisions applicable to such Capital Stock are not more favorable, as measured by the
purchase or redemption price or the breadth of the definition of the event or events triggering such purchase or redemption obligation
to the holders of such Capital Stock than the provisions of Section 4.10 and Section 4.14, respectively, and any such requirement
becomes operative only after compliance with such corresponding terms applicable to the Notes, including the purchase of any Notes tendered
pursuant thereto; provided, further, that if such Capital Stock is issued to any plan for the benefit of employees of the Company
or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because
it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations;
and provided, further, that any Capital Stock held by any future, current or former employee, director, manager or consultant
(or their respective trusts, estates, investment funds, investment vehicles or immediate family members) of the Company, any of its Subsidiaries
or any direct or indirect parent thereof, in each case upon the termination of employment or death of such person pursuant to any stockholders’
agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement, shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries or any direct or indirect parent
of the Company.
“DTC”
means The Depository Trust Company.
“Enforcement
Action” means any action to:
| (1) | foreclose,
execute, levy, or collect on, take possession or control of (other than for purposes of perfection),
sell or otherwise realize upon (judicially or non-judicially), or lease, license, or otherwise
dispose of (whether publicly or privately), Collateral, or otherwise exercise or enforce
remedial rights with respect to Collateral under the First Lien Loan Documents or the Second
Lien Debt Documents (including by way of setoff, recoupment, notification of a public or
private sale or other disposition pursuant to the UCC or other applicable law, notification
to account debtors, notification to depositary banks under deposit account control agreements,
or exercise of rights under landlord consents, if applicable); |
| (2) | solicit
bids from third Persons, approve bid procedures for any proposed disposition of Collateral,
conduct the liquidation or disposition of Collateral or engage or retain sales brokers, marketing
agents, investment bankers, accountants, appraisers, auctioneers, or other third Persons
for the purposes of valuing, marketing, promoting, and selling Collateral; |
| (3) | receive
a transfer of Collateral in satisfaction of Debt or any other Obligation secured thereby; |
| (4) | otherwise
enforce a security interest or exercise another right or remedy, as a secured creditor or
otherwise, pertaining to the Collateral at law, in equity, or pursuant to the First Lien
Loan Documents or Second Lien Debt Documents (including the commencement of applicable legal
proceedings or other actions with respect to all or any portion of the Collateral to facilitate
the actions described in the preceding clauses, and exercising voting rights in respect of
equity interests comprising Collateral); or |
| (5) | effectuate
or cause the disposition of Collateral by the Company or any Guarantor after the occurrence
and during the continuation of an event of default under any of the First Lien Loan Documents
or the Second Lien Debt Documents with the consent of the applicable First Lien Collateral
Agent (or First Lien Claimholders) or Second Lien Collateral Agent (or Second Lien Claimholders). |
“Equity
Interests” in any Person means all Capital Stock in such Person 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) in such Person.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Excluded
Assets” has the meaning assigned to it in the Security Documents.
“Excluded
Subsidiary” means (a) any Subsidiary that is not a wholly-owned Subsidiary of the Company; (b) (i) any Subsidiary
that is prohibited by any applicable law or, solely with respect to Subsidiaries existing on the Issue Date or on the date such Subsidiary
is acquired (provided, that such prohibition is not created in contemplation of such acquisition), its organic documents from
guaranteeing the Note Obligations, (ii) any Subsidiary that is prohibited by any contractual obligation existing on the Issue Date
or on the date any such Subsidiary is acquired from guaranteeing the Note Obligations (provided, that such prohibition is not
created in contemplation of such acquisition) and (iii) to the extent that the provision of any Guarantee of the Note Obligations
would require the consent, approval, license or authorization of any governmental authority which has not been obtained, any Subsidiary
that is subject to such restrictions; provided that after such time that such restrictions on Guarantees are waived, lapse, terminate
or are no longer effective, such Restricted Subsidiary shall no longer be an Excluded Subsidiary; (c) (i) any wholly-owned
Subsidiary incorporated or organized under the laws of Canada or any province or territory of Canada or (ii) any wholly-owned Subsidiary
organized under the laws of the United States, any state of the United States or the District of Columbia that (a) has no material
assets other than Equity Interests of one or more Subsidiaries that are “controlled foreign corporations” within the meaning
of Section 957(a) of the Code) or (b) is a Subsidiary of a Subsidiary that is a “controlled foreign corporation”
within the meaning of Section 957(a) of the Code) (provided any Subsidiary described in the foregoing clauses (c)(i) or
(c)(ii) shall be an Excluded Subsidiary only with respect to the guarantee of an obligation of a United States person); (d) each
Subsidiary that is not a Material Subsidiary, (e) any Subsidiary that is not a wholly-owned Subsidiary incorporated or organized
under the laws of Canada or any province or territory of Canada or a wholly-owned Subsidiary organized under the laws of the United States,
any state of the United States or the District of Columbia, (f) each Non-Recourse Subsidiary, (g) each Unrestricted Subsidiary
and (h) any Subsidiary for which the provision of a Guarantee would result in a material adverse tax or regulatory consequence to
the Company or one of its Subsidiaries, as applicable.
“Excluded
Swap Obligation” means, with respect to any Person, any Swap Obligation if, and to the extent that, all or a portion of the
guarantee of such Person, or the grant by such Person of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes
illegal under the Commodity Exchange Act, as amended, or any rule, regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by virtue of such Person’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act, as amended, and the regulations thereunder at the time the guarantee
of such Person or the grant of such Lien becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a
master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable
to swaps for which such guarantee or Lien is or becomes illegal.
“Existing
Notes” means the Company’s 9.50% Senior Secured Notes due 2024.
“Existing
Notes Documents” means the Existing Notes, the Existing Notes Indenture and the “Security Documents” (as defined
in the Existing Notes Indenture).
“Existing
Notes Indenture” means the Indenture, dated as of the Original Issue Date, among the Company, the guarantors party thereto
from time to time, and Deutsche Bank Trust Company Americas, as trustee and collateral agent, governing the Existing Notes.
“Existing
Notes Obligations” means the Obligations of the Company and the Guarantors under the Existing Notes Indenture, the Existing
Notes and the other Existing Notes Documents, to pay principal of, premium, if any, and interest when due and payable, and all other
amounts due or to become due under or in connection with the Existing Notes Indenture, the Existing Notes and the performance of all
other obligations under the Existing Notes Indenture, the Existing Notes and the other Existing Notes Documents, according to the respective
terms thereof.
“Fair
Market Value” means, with respect to the consideration received or paid in any transaction or series of transactions, the fair
market value thereof as determined in good faith by the Board of Directors of the Company.
“First
Lien Claimholders” means the Initial First Lien Claimholders and any Additional First Lien Claimholders.
“First
Lien Collateral” means any “Collateral” or “Pledged Collateral” or similar term as defined in any First
Lien Loan Document or any other assets of the Company or any Guarantor with respect to which a Lien is granted or purported to be granted
or required to be granted pursuant to a First Lien Loan Document as security for any First Lien Obligations and shall include any property
or assets subject to replacement Liens or adequate protection Liens in favor of any First Lien Claimholder.
“First
Lien Collateral Agent” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Claimholders,
the Initial First Lien Collateral Agent and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien
Claimholders in respect thereof, the Person serving as collateral agent (or the equivalent) for such Additional First Lien Obligations
and that is named as the First Lien Collateral Agent in respect of such Additional First Lien Obligations in the applicable joinder agreement
(each, in the case of this clause (ii) together with its successors and assigns in such capacity, an “Additional First
Lien Collateral Agent”).
“First
Lien Collateral Documents” means the “Security Documents” or “Collateral Documents” or similar term
(as defined in the applicable First Lien Loan Documents) and any other agreement, document or instrument pursuant to which a Lien is
granted securing any First Lien Obligations or pursuant to which any such Lien is perfected.
“First
Lien Debt” means the Initial First Lien Debt and any Additional First Lien Debt.
“First
Lien Loan Documents” means the Initial First Lien Loan Documents and any Additional First Lien Loan Documents.
“First
Lien Obligations” means the Initial First Lien Obligations and any Additional First Lien Obligations, and shall not include,
for the avoidance of doubt, any Excluded Swap Obligations.
“First
Lien Pari Passu Intercreditor Agreement” means an agreement among each First Lien Representative and each First Lien Collateral
Agent allocating rights among the various Series of First Lien Obligations.
“First
Lien Representative” means (i) in the case of any Initial First Lien Obligations or the Initial First Lien Claimholders,
the Initial First Lien Representative and (ii) in the case of any Additional First Lien Obligations and the Additional First Lien
Claimholders in respect thereof, each trustee, administrative agent, collateral agent, security agent and similar agent that is named
as the First Lien Representative in respect of such Additional First Lien Obligations in the applicable joinder agreement (each, in the
case of this clause (ii), together with its successors and assigns in such capacity, an “Additional First Lien Representative”).
“Foreign
Subsidiary” means any Subsidiary that is not organized or existing under the laws of the United States, any state thereof,
any territory thereof, or the District of Columbia.
“GAAP”
means generally accepted accounting principles in effect in the United States from time to time.
“Global
Note Legend” means the legend identified as such in Exhibit A hereto.
“Global
Notes” means the Notes in global form that are in the form of Exhibit A hereto, including the applicable legend
or legends set forth in Exhibit A.
“Guarantee”
means, as applied to any Debt of another Person, a guarantee (other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or all of such Debt. “Guaranteed” and
“Guaranteeing” shall have meanings that correspond to the foregoing.
“Hedge
Agreement” means a Swap Contract entered into by the Company, any other Guarantor or any of their respective Subsidiaries with
a counterparty as permitted under the First Lien Loan Documents or the Second Lien Debt Documents, as the case may be.
“Hedging
Obligations” of any Person means any obligation of such Person pursuant to any Hedge Agreement.
“Holder”
means a Person in whose name a Note is registered on the Registrar’s books.
“Holdings”
means Topaz Holdings, LLC, a Delaware limited liability company.
“Incur”
means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Debt or other obligation on the balance sheet of such Person; provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt. Debt otherwise
Incurred by a Person before it becomes a Restricted Subsidiary of the Company shall be deemed to be Incurred at the time at which such
Person becomes a Restricted Subsidiary of the Company. “Incurrence” “Incurred,” “Incurrable”
and “Incurring” shall have meanings that correspond to the foregoing. A Guarantee by the Company or a Restricted Subsidiary
of Debt Incurred by the Company or a Restricted Subsidiary, as applicable, shall not be a separate Incurrence of Debt. In addition, the
following shall not be deemed a separate Incurrence of Debt:
| (1) | amortization
of debt discount or accretion of principal with respect to a non-interest bearing or other
discount security; |
| (2) | the payment
of regularly scheduled interest in the form of additional Debt of the same instrument or
the payment of regularly scheduled dividends on Equity Interests in the form of additional
Equity Interests of the same class and with the same terms; |
| (3) | the obligation
to pay a premium in respect of Debt arising in connection with the issuance of a notice of
redemption or making of a mandatory offer to purchase such Debt; and |
| (4) | unrealized
losses or charges in respect of Hedging Obligations. |
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Initial
First Lien Claimholders” means the “Secured Parties” under the ABL Credit Facility.
“Initial
First Lien Collateral Agent” means Bank of America, N.A., as administrative agent and collateral agent under the ABL Credit
Facility, and its successors and/or assigns in such capacity.
“Initial
First Lien Debt” means the Debt and guarantees thereof now or hereafter incurred pursuant to the Initial First Lien Loan Documents.
“Initial
First Lien Loan Documents” means the ABL Credit Facility and the other “Loan Documents” under the ABL Credit Facility
and any other document or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Initial First Lien
Obligations.
“Initial
First Lien Obligations” means “Secured Obligations” under the ABL Credit Facility.
“Initial
First Lien Representative” means Bank of America, N.A.
“Initial
Second Lien Claimholders” means the “Secured Parties” under the Initial Second Lien Debt Documents.
“Initial
Second Lien Debt” means the Debt and guarantees thereof now or hereafter incurred pursuant to the Initial Second Lien Debt
Documents. Initial Second Lien Debt shall include any Registered Equivalent Notes and guarantees thereof by the Guarantors issued in
exchange thereof.
“Initial
Second Lien Debt Documents” means the Existing Notes Indenture and the other Existing Notes Documents and any other document
or agreement entered into for the purpose of evidencing, governing, securing or perfecting the Existing Notes Obligations.
“Initial
Second Lien Collateral Agent” means Deutsche Bank Trust Company Americas, on behalf of the holders of the Existing Notes.
“Initial
Second Lien Representative” means Deutsche Bank Trust Company Americas, in its capacity as Initial Second Lien Collateral Agent.
“Insolvency
or Liquidation Proceeding” means any case or proceeding, application, meeting convened, resolution passed, proposal, corporate
action or any other proceeding commenced by or against a Person under any state, provincial, territorial, federal or foreign law for,
or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other steps being taken
under any other insolvency, debtor relief, bankruptcy, receivership, debt adjustment law or other similar law (whether state, provincial,
territorial, federal or foreign), including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada) and the Winding-Up and Restructuring Act (Canada); (b) the appointment of a custodian for such Person or any part of its
property; (c) an assignment or trust mortgage for the benefit of creditors; (d) the winding-up or strike off of such Person;
(e) the proposal or implementation of a scheme or plan of arrangement or composition; and/or (f) a suspension of payment, moratorium
of any debts, official assignment, composition or arrangement with a Person’s creditors.
“Intercreditor
Agreement” means, as the context may require, (i) the intercreditor agreement, dated as of the Original Issue Date, among
the Initial First Lien Collateral Agent, Deutsche Bank Trust Company Americas, in its capacity as the Initial Second Lien Collateral
Agent and the Initial Second Lien Representative, the Company and each Guarantor and, from and following the Issue Date, Deutsche Bank
Trust Company Americas, in its capacity as an Additional Second Lien Representative (as defined therein) and an Additional Second Lien
Collateral Agent (as defined therein) on behalf of the Holders of the Notes, and (ii) any other intercreditor agreement that may
be entered into after the Issue Date by the Company, any Guarantor and the Collateral Agent in connection with Credit Facilities not
otherwise prohibited by this Indenture (which is not materially less favorable to the Collateral Agent and the Holders of the Notes (taken
as a whole) than the intercreditor agreement referred to in clause (i) of this definition) (as certified to by the Company in an
Officer’s Certificate delivered to the Trustee and the Collateral Agent), in each case, as it may be amended, restated, supplemented
and/or otherwise modified from time to time in accordance with the terms thereof and this Indenture.
“Investment”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons in the form of loans, advances
(or other extensions of credit) or capital contributions (by means of any transfer of cash or other property or assets to another Person
or any other payments for property or services for the account or use of another Person), including the following: (i) the purchase
or acquisition of any Equity Interest or other evidence of beneficial ownership in another Person; and (ii) the purchase, acquisition
or Guarantee of the obligations of another Person, but shall exclude: (a) accounts receivable, notes receivable and other extensions
of trade credit in the ordinary course of business; (b) other credits to suppliers in the ordinary course of business; (c) the
acquisition of property and assets (including inventory, supplies, materials and equipment or licenses or leases of intellectual property);
(d) the purchase or acquisition of the business, assets or services of another Person; (e) prepaid expenses and workers’
compensation, utility, lease and similar deposits, in the ordinary course of business; (f) negotiable instruments held for collection
and endorsements for collection or deposit; and (g) loans and advances to officers, directors and employees for commission, travel,
entertainment, relocation and analogous ordinary business purposes, in each case, made in the ordinary course of business. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company will be deemed to have made an Investment on the date of any such disposition equal to the Fair Market Value
of the Company’s Investments in such Person that were not sold or disposed of. The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or
such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person
in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.
“Investment
Grade Status” shall apply at any time the Notes receive both a rating equal to or higher than BBB- (or the equivalent) from
S&P and a rating equal to or higher than Baa3 (or the equivalent) from Moody’s.
“Issue
Date” means the date on which the Notes are originally issued under this Indenture.
“Junior
Lien Obligations” means obligations under Debt that is unsecured or is secured by a Lien on a junior basis to the Liens securing
the Note Obligations and subject to a customary intercreditor agreement.
“Lien”
means any mortgage, pledge (including, without limitation, disclosed, undisclosed, possessory and non-possessory), security interest,
hypothecation, assignment, statutory trust, deemed trust, privilege, lien, charge, bailment or similar encumbrance, whether statutory,
based on common law, contract or otherwise, and including any option or agreement to give any of the foregoing, any filing of or agreement
to give any financing statement under the Uniform Commercial Code or the Personal Property Security Act (Ontario) (or equivalent or successor
statutes) of any jurisdiction to evidence any of the foregoing, any conditional sale or other title retention agreement, any reservation
of ownership or any lease in the nature thereof.
“Limited
Condition Transaction” means any Investment or acquisition (whether by merger, amalgamation, consolidation or other business
combination or the acquisition of Equity Interests or otherwise), irrevocable debt repurchase, repayment or redemption, or dividend,
in each case, whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Material
Subsidiary” means, as at any date of determination, each Restricted Subsidiary of the Company (a) whose total assets (other
than intercompany receivables) at the last day of the most recently ended Four-Quarter Period were equal to or greater than 2.5% of the
Consolidated Total Assets of the Company and its Restricted Subsidiaries at such date or (b) whose gross revenues (other than revenues
generated from sales to the Company or any of its Restricted Subsidiaries) for such Four-Quarter Period were equal to or greater than
2.5% of the consolidated gross revenues of the Company and its Restricted Subsidiaries for such period, in each case determined in accordance
with GAAP. Notwithstanding the foregoing, each Borrower (as defined in the ABL Credit Facility) that is a Subsidiary of the Company shall
at all times be deemed to be a Material Subsidiary.
“Moody’s”
means Moody’s Investors Service, Inc. and its successors.
“Net
Cash Proceeds” means, with respect to Asset Sales of any Person, cash and Cash Equivalents received, net of: (i) the direct
costs and expenses of such Person incurred in connection with such a sale, including all legal, tax, investment banking, accounting,
title and recording tax expenses, broker or finder fees, commissions and other fees and expenses incurred and all federal, state, foreign
and local taxes arising in connection with such an Asset Sale that are paid or required to be accrued as a liability under GAAP by such
Person; (ii) all payments made by such Person on any Debt that is secured by such properties or other assets in accordance
with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt,
or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Company
or any Restricted Subsidiary thereof) in connection with such Asset Sale; (iii) distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person as a result of such transaction and (iv) any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with GAAP or amount placed in an escrow account or cash reserves
for purposes of such an adjustment and escrowed amounts and amounts taken by the Company or its Restricted Subsidiaries as a reserve
against liabilities associated with such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related
to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined in
accordance with GAAP; provided, however, that any non-cash consideration received in connection with any transaction,
which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.
“Non-Recourse
Debt” means Debt (a) as to which neither the Company nor any of its Restricted Subsidiaries (other than any Non-Recourse
Subsidiaries) (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute
Debt) other than a pledge of the equity interests of any Non-Recourse Subsidiary, (ii) is directly or indirectly liable (as a guarantor
or otherwise) other than by virtue of a pledge of the equity interests of any Non-Recourse Subsidiary, or (iii) constitutes the
lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action
against any Non-Recourse Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Debt (other than Debt
under the Credit Facilities or the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Debt
or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and (c) as to which the lenders thereunder
will not have any recourse to the Equity Interests or assets of the Company or any of its Restricted Subsidiaries (other than the Non-Recourse
Subsidiaries).
“Non-Recourse
Subsidiary” means any wholly-owned Subsidiary of the Company incorporated or organized under the laws of Canada or any province
or territory of Canada, or under the laws of the United States, any state of the United States or the District of Columbia, which is
created for the purpose of obtaining stand-alone financing for the acquisition and lease of rental equipment to customers, and all of
whose Debt is Non-Recourse Debt.
“Note
Claimholders” means (i) the Holders, (ii) the Trustee, (iii) the Collateral Agent and (iv) each of their
respective successors and assigns and their permitted transferees and endorsees.
“Note
Custodian” means the Trustee when serving as custodian for the Depositary with respect to the Global Notes, or any successor
entity thereto.
“Note
Documents” means this Indenture, the Notes, the Note Guarantees and the Security Documents.
“Note
Guarantee” means the Guarantee of the Notes, on a joint and several basis, by Holdings and each direct or indirect wholly-owned
U.S. organized Restricted Subsidiary that guarantees the Debt under the ABL Credit Facility and the Existing Notes.
“Note
Liens” means all Liens in favor of the Collateral Agent on Collateral securing the Note Obligations, including any Second Lien
Obligations.
“Note
Obligations” means the Obligations of the Company and the Guarantors under this Indenture, the Notes and the Security Documents,
to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection
with this Indenture, the Notes and the performance of all other obligations to the Trustee, the Collateral Agent and the Holders under
this Indenture, the Notes and the Security Documents, according to the respective terms thereof.
“Obligations”
means all obligations of every nature of the Company and each other Guarantor from time to time owed to any agent or trustee, the First
Lien Claimholders, the Second Lien Claimholders or any of them or their respective Affiliates, in each case, under the First Lien Loan
Documents, the Second Lien Debt Documents, Hedge Agreements or Bank Product Obligations, whether for principal, interest or payments
for early termination of Swap Contracts, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing and
including any interest and fees that accrue after the commencement by or against any Person of any proceeding under any Bankruptcy Law
naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Offer
to Purchase” means a written offer (the “ Offer”) sent by the Company by first class mail, postage prepaid
(or, to the extent permitted by applicable procedures or regulations, electronically), to each Holder at his address appearing in the
security register on the date of the Offer, offering to purchase up to the aggregate principal amount of Notes set forth in such Offer
at the purchase price set forth in such Offer (as determined pursuant to this Indenture). Unless otherwise required by applicable law,
the Offer shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be, subject
to any contrary requirements of applicable law, not less than thirty (30) days or more than sixty (60) days after the date of mailing
of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes within five (5) Business Days
after the Expiration Date. The Company shall notify the Trustee in writing at least fifteen (15) days (or such shorter period as is acceptable
to the Trustee) prior to the delivery of the Offer of the Company’s obligation to make an Offer to Purchase, and the Offer shall
be sent by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company. The Offer shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer
shall also state:
| (1) | the Section of
this Indenture pursuant to which the Offer to Purchase is being made; |
| (2) | the Expiration
Date and the Purchase Date; |
| (3) | the aggregate
principal amount of the outstanding Notes offered to be purchased pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount has been determined
pursuant to Section 4.10); |
| (4) | the purchase
price to be paid by the Company for each $1,000 principal amount of Notes accepted for payment
(as specified pursuant to this Indenture); |
| (5) | that the
Holder may tender all or any portion of the Notes registered in the name of such Holder and
that any portion of a Note tendered must be tendered in a minimum amount of $1,000 principal
amount; |
| (6) | the place
or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase,
if applicable; |
| (7) | that,
unless the Company defaults in making such purchase, any Note accepted for purchase pursuant
to the Offer to Purchase will cease to accrue interest on and after the Purchase Date, but
that any Note not tendered or tendered but not purchased by the Company pursuant to the Offer
to Purchase will continue to accrue interest at the same rate; |
| (8) | that,
on the Purchase Date, the Purchase Price will become due and payable upon each Note accepted
for payment pursuant to the Offer to Purchase; |
| (9) | that each
Holder electing to tender a Note pursuant to the Offer to Purchase will be required to surrender
such Note or cause such Note to be surrendered at the place or places set forth in the Offer
prior to the close of business on the Expiration Date (such Note being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing); |
| (10) | that
Holders will be entitled to withdraw all or any portion of Notes tendered if the Company
(or its paying agent) receives, not later than the close of business on the fifth Business
Day prior to the Expiration Date, a facsimile transmission or letter setting forth the name
of the Holder, the aggregate principal amount of the Notes the Holder tendered, the certificate
number of the Note the Holder tendered and a statement that such Holder is withdrawing all
or a portion of his tender; and |
| (11) | if applicable,
that, in the case of any Holder whose Note is purchased only in part, the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by such Holder,
in the aggregate principal amount equal to and in exchange for the unpurchased portion of
the aggregate principal amount of the Notes so tendered. |
“Offering
Memorandum” means the Confidential Offering Memorandum and Consent Solicitation Statement, dated September 29, 2023, related
to the issuance of the Initial Notes on the Issue Date.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any
Assistant Secretary or any Vice-President of such Person.
“Officer’s
Certificate” means a certificate signed by an Officer of the Company or a Guarantor, as applicable.
“Original
Issue Date” means March 15, 2019.
“Original
Transactions” means the transactions described under “Summary—The Transactions” in the offering circular
for the Existing Notes.
“Opinion
of Counsel” means an opinion reasonably acceptable to the Trustee from legal counsel. The counsel may be an employee of or
counsel to the Company or any Subsidiary of the Company.
“Pari
Passu Debt” means (1) the Notes and any Debt which ranks equally in right of payment to the Notes (including the Existing
Notes) and, in respect of any Asset Sale involving Collateral, with an equal ranking Lien on the assets disposed of in such Asset Sale
and (2) with respect to any Guarantor, its Note Guarantee and any Debt which ranks equally in right of payment to such Guarantor’s
Note Guarantee (including its guarantees of the Existing Notes) and, in respect of any Asset Sale involving Collateral, with an equal
ranking Lien on the assets disposed of in such Asset Sale.
“Participant”
means, with respect to DTC, a Person who has an account with DTC, including the Euroclear System and Clearstream Banking, S.A.
“Paying
Agent” means any Person authorized by the Company to pay the principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance, covenant defeasance or similar payment with respect to, any Notes on behalf of the Company.
“Permitted
Business” means any business similar in nature to any business conducted by the Company and its Restricted Subsidiaries on
the Original Issue Date and any business reasonably ancillary, incidental, complementary or related to the business conducted by the
Company and its Restricted Subsidiaries on the Original Issue Date, or a reasonable extension, development or expansion thereof, in each
case, as determined in good faith by the Board of Directors of the Company.
“Permitted
Collateral Liens” means Permitted Liens (other than Liens described in clause (t) of the definition thereof).
“Permitted
Debt” means
| (i) | First
Lien Obligations (including amounts outstanding on the Original Issue Date) in an aggregate
principal amount at any one time outstanding not to exceed the greater of (x) $200.0
million and (y) the Borrowing Base; |
| (ii) | Debt
outstanding under the Existing Notes and the Notes (excluding any Additional Notes) and contribution,
indemnification and reimbursement obligations owed by the Company or any Guarantor to any
of the other of them in respect of amounts paid or payable on such Debt, and any Refinancing
Debt with respect to the foregoing; |
| (iii) | Guarantees
of the Notes, including any Refinancing Debt in respect thereof; |
| (iv) | (A) Debt
of the Company or any of its Subsidiaries (including any unused commitment) existing on the
Original Issue Date (other than Debt described in clause(i), (ii) or (iii) above)
and (B) any Refinancing Debt with respect to the foregoing; provided that, the
incurrence of any such Refinancing Debt shall not be deemed to have refreshed capacity under
the foregoing clause (A); |
| (v) | intercompany
Debt owed to the Company or to any of its Restricted Subsidiaries; provided that
if such Debt is owed by the Company or any Guarantor to a Restricted Subsidiary that is not
a Guarantor, such Debt shall be subordinated in right of payment to the prior payment in
full of the Company’s or such Guarantor’s Note Obligations; |
| (vi) | Guarantees
Incurred by the Company of Debt of a Restricted Subsidiary otherwise permitted to be incurred
under this Indenture; |
| (vii) | Guarantees
by the Company or any of its Restricted Subsidiaries of Debt of the Company or any of its
Restricted Subsidiaries, including Guarantees by any Restricted Subsidiary of Debt under
Credit Facilities; provided that (a) such Debt is Permitted Debt or is otherwise
Incurred in accordance with Section 4.9 and (b) such Guarantees are subordinated
in right of payment to the Note Guarantees to the same extent, if any, as the Debt being
guaranteed is subordinated in right of payment to the Notes; |
| (viii) | Debt
incurred in respect of workers’ compensation claims, performance or surety bonds, health,
disability or other employee benefits, property, casualty or liability insurance or self-insurance
obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds
or obligations, bankers’ acceptances, bank guarantees, letter of credit, warehouse
receipt, completion guarantees and similar facilities, or other Debt with respect to reimbursement
type obligations regarding the foregoing, in each case, provided or incurred (including Guarantees
thereof) by the Company or any of its Restricted Subsidiaries in the ordinary course of business; |
| (ix) | the Incurrence
of Hedging Obligations by the Company or any of its Restricted Subsidiaries except Hedging
Obligations entered into for speculative purposes; |
| (x) | (A) the
Incurrence of Debt (including Debt comprised of Capital Lease Obligations, mortgage financings
or purchase money obligations and Debt arising under leases entered into in connection with
a Sale and Leaseback Transaction not prohibited by this Indenture), Disqualified Stock or
preferred stock by the Company or any of its Restricted Subsidiaries, in each case, Incurred
for the purpose of financing all or any part of the purchase price or cost of design, construction,
lease, installation or improvement of, or repairs, improvements or additions to property
(real or personal), plant or equipment used or useful in the business of the Company or any
of its Restricted Subsidiaries; provided that at the time of Incurrence of any such
Debt, the aggregate principal amount of Debt outstanding under this clause (x)(A) does
not exceed the greater of (x) $40.0 million and (y) 7.0% of Consolidated Total
Assets and (B) any Refinancing Debt in respect of each of the foregoing; provided
that, the Incurrence of any such Refinancing Debt shall not be deemed to have refreshed
capacity under the foregoing clause (A); |
| (xi) | Debt
arising from agreements of the Company or any of its Restricted Subsidiaries providing for
indemnification, contribution, earnout, adjustment of purchase price or similar obligations,
in each case, incurred or assumed in connection with the acquisition or disposition of any
business, assets or Equity Interests of a Restricted Subsidiary otherwise permitted under
this Indenture; |
| (xii) | the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of
its Restricted Subsidiaries of shares of preferred stock; provided, however,
that: |
| (a) | any subsequent
issuance or transfer of Equity Interests that results in any such preferred stock being held
by a Person other than the Company or its Restricted Subsidiaries (other than to the extent
secured by a Permitted Lien until such collateral has been foreclosed upon); and |
| (b) | any sale
or other transfer of any such preferred stock to a Person that is not either the Company
or a Restricted Subsidiary of the Company (other than to the extent secured by a Permitted
Lien until such collateral has been foreclosed upon); |
shall
be deemed, in each case, to constitute an issuance of such preferred stock by the Company or such Restricted Subsidiary that was not
permitted by this clause (xii);
| (xiii) | Debt
arising from the honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds; provided, however, that such
Debt is extinguished within ten (10) Business Days after the Company receiving notice
of the Incurrence thereof; |
| (xiv) | (A) additional
Debt of the Company and its Restricted Subsidiaries in an aggregate principal amount at any
time outstanding not to exceed the greater of (x) $60.0 million and (y) 10.0% of
Consolidated Total Assets and (B) any Refinancing Debt with respect thereto; provided,
that the Incurrence of such Refinancing Debt shall not be deemed to have refreshed capacity
under the foregoing clause (A); |
| (xv) | Refinancing
Debt in respect of Debt Incurred pursuant to the first paragraph of Section 4.9; |
| (xvi) | (A) Debt
Incurred by Restricted Subsidiaries that are not Guarantors in an aggregate principal amount
at any one time outstanding not to exceed the greater of (x) $50.0 million and (y) 8.0%
of Consolidated Total Assets as of the last date of the most recently ended Four-Quarter
Period and (B) any Refinancing Debt with respect thereto; provided, that the
Incurrence of such Refinancing Debt shall not be deemed to have refreshed capacity under
the foregoing clause (A); |
| (xvii) | (A) Non-Recourse
Debt of any Non-Recourse Subsidiary; provided that the aggregate Debt incurred under
this clause (xvii) at any one time outstanding does not exceed $40.0 million and (B) any
Refinancing Debt with respect thereto; provided, that the Incurrence of such Refinancing
Debt shall not be deemed to have refreshed capacity under the foregoing clause (A); |
| (xviii) | Debt
of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance
premiums or “take or pay” obligations in the ordinary course of business; |
| (xix) | (A) Debt
consisting of unsecured promissory notes or similar Debt issued by the Company or any of
its Restricted Subsidiaries to current, future or former officers, directors and employees
thereof, or to their respective estates, spouses, former spouses, successors, executors,
administrators, heirs, legatees or distributees, in each case to finance the purchase or
redemption of Equity Interests of the Company or any direct or indirect parent thereof to
the extent described in clause (iv) of the second paragraph of Section 4.7 and
(B) any Refinancing Debt with respect thereto; provided that, the incurrence
of any such Refinancing Debt shall not be deemed to have refreshed capacity under the foregoing
clause (A); |
| (xx) | Debt
Incurred by the Company or any of its Restricted Subsidiaries, to the extent that the net
proceeds thereof are promptly deposited with the Trustee to redeem the Notes in full or to
defease or to satisfy and discharge the Notes; |
| (xxi) | (A) Debt
of any Receivables Subsidiary pursuant to a Qualified Receivables Transaction in respect
of any Qualified Receivables Transaction that is without recourse to the Company or any Restricted
Subsidiary or any of their respective assets (other than pursuant to Standard Securitization
Undertakings) and (B) any Refinancing Debt with respect to the foregoing; provided
that, the incurrence of any such Refinancing Debt shall not be deemed to have refreshed
capacity under the foregoing clause (A); |
| (xxii) | (A) (i) Acquired
Debt or (ii) other Debt of such Persons or the Company or any of its Restricted Subsidiaries
Incurred (x) to provide all or any portion of the funds utilized to consummate the transaction
or series of related transactions pursuant to which such Person became a Restricted Subsidiary
of the Company (including being designated as a Restricted Subsidiary) or was otherwise acquired
by, or merged into or amalgamated, arranged or consolidated with the Company or any of its
Restricted Subsidiaries or (y) otherwise in connection with, or in contemplation of,
such acquisition, merger, amalgamation, arrangement or consolidation; provided, however,
in each case set forth in clause (x) or (y), that such Debt constitutes either Additional
Second Lien Obligations or Junior Lien Obligations; provided further that if such Debt constitutes
Junior Lien Obligations, the Company could Incur at least $1.00 of additional Debt (other
than Permitted Debt) pursuant to the first paragraph under Section 4.9, and (B) any
Refinancing Debt with respect thereto; |
| (xxiii) | Debt
of the Company and any of its Restricted Subsidiaries in respect of Cash Management Agreements
and other Debt in respect of netting services, employees’ credit or purchase cards,
overdraft protections and similar arrangements, in each case, entered into in the ordinary
course of business; |
| (xxiv) | customer
deposits and advance payments received in the ordinary course of business from customers
of goods and services purchased in the ordinary course of business; |
| (xxv) | (A) Debt
of the Company or any of its Restricted Subsidiaries in an aggregate principal amount not
to exceed the Available Excluded Contribution Amount, and (B) any Refinancing Debt with
respect to the foregoing; provided that, the incurrence of any such Refinancing Debt
shall not be deemed to have refreshed capacity under the foregoing clause (A); or |
| (xxvi) | (A) Debt
Incurred in connection with any Sale and Leaseback Transaction permitted under Section 4.13
in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $40.0
million and (y) 7.0% of Consolidated Total Assets and (B) any Refinancing Debt
with respect thereto; provided, that the Incurrence of such Refinancing Debt shall
not be deemed to have refreshed capacity under the foregoing clause (A). |
“Permitted
Holder” means the Sponsor, its Affiliates and/or the Sponsor Affiliates (in each case, including, as applicable, related funds
and general partners thereof).
“Permitted
Investments” means:
| (a) | Investments
in existence on, or contemplated as of, the Original Issue Date, and any extension, modification,
renewal or reinvestment of any such Investments, but only to the extent not involving additional
advances, contributions or increases thereof (other than as a result of accrual or accretion
of interest or original issue discount or the issuance of pay-in-kind securities, in each
case, pursuant to the terms thereof); provided that the amount of any such Investments
may be increased (x) as otherwise permitted under this Indenture or (y) as required
by the terms of such Investment as in existence on the Original Issue Date; |
| (b) | Investments
required pursuant to any agreement or obligation of the Company or any of its Restricted
Subsidiaries, in effect on the Original Issue Date, to make such Investments; |
| (c) | Investments
in (x) cash and assets constituting Cash Equivalents at the time made and (y) the
Notes and Additional Second Lien Obligations (by way of purchase or other acquisition); |
| (d) | Investments
in property and other assets, owned or used by the Company or any of its Restricted Subsidiaries
in the operation of a Permitted Business; |
| (e) | Investments
by the Company or any of its Restricted Subsidiaries in the Company or any of its Restricted
Subsidiaries; |
| (f) | Investments
by the Company or any of its Restricted Subsidiaries in a Person, if (A) as a result
of such Investment such Person becomes a Restricted Subsidiary or (B) in connection
with such Investment such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is liquidated or wound-up
into, the Company or any of its Restricted Subsidiaries; |
| (g) | Investments
represented by Hedging Obligations not for speculative purposes; |
| (h) | Investments
received or acquired (x) in settlement, compromise, partial or full satisfaction, or
resolution of obligations owed to the Company or any of its Restricted Subsidiaries, including
pursuant to bankruptcy, insolvency or similar proceedings (including as a result of any workout,
reorganization or recapitalization), (y) on account of any claim or Lien against, or
interest in, any other Person or its properties as a result of a foreclosure or enforcement
by the Company or any of its Restricted Subsidiaries with respect to such claim or Lien against,
or interest in, such other Person or its properties, or (z) in compromise or resolution
of any litigation, arbitration or other disputes (including those arising in the ordinary
course of business) with Persons who are not Affiliates of the Company; |
| (i) | Investments
consisting of loans and advances to officers, directors, consultants and employees (i) in
connection with such Person’s purchase of Equity Interests in any direct or indirect
parent of the Company and (ii) otherwise, in an amount not to exceed in the aggregate
at any one time outstanding the greater of (x) $5.0 million and (y) 0.875% of Consolidated
Total Assets; |
| (j) | Investments
in any Person to the extent the consideration for such Investments consist solely of Equity
Interests of the Company or any direct or indirect parent of the Company; |
| (k) | any Investment
in any Person to the extent such Investment represents the non-cash portion of the consideration
received in connection with an Asset Sale consummated in compliance with Section 4.10
or any other sale, transfer or other disposition of property not constituting an Asset Sale; |
| (l) | Investments
in the ordinary course of business consisting of UCC Article 4 customary trade arrangements
with customers consistent with past practices; |
| (m) | payroll,
travel and similar advances that are made in the ordinary course of business; |
| (n) | guarantees
of (x) Debt permitted by Section 4.9 and (y) leases (other than capital leases)
or other obligations that do not constitute Debt entered into in the ordinary course of business; |
| (o) | Investments
by any Restricted Subsidiary that is not a Guarantor in a Receivables Subsidiary in connection
with a Qualified Receivables Transaction; |
| (p) | Investments
made by the Company or a Restricted Subsidiary to repurchase or retire Equity Interests of
a direct or indirect parent of the Company owned by any employee stock ownership plan or
key employee stock ownership plan of the Company, any Restricted Subsidiary or any direct
or indirect parent thereof; |
| (r) | cash or
Cash Equivalents or other property deposited in the ordinary course of business to secure
(or to secure letters of credit, banker’s acceptances or bank guarantees in connection
with) the performance of statutory obligations (including obligations under worker’s
compensation, unemployment insurance or similar legislation), surety or appeal bonds, customs
bonds, leases, bids, agreements or other obligations under arrangements with utilities, insurance
agreements, construction agreements, government contracts, performance bonds or other obligations
of a like nature incurred in the ordinary course of business; |
| (s) | Investments
of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company
or at the time such Person is acquired or otherwise merges or consolidates with the Company
or any of its Restricted Subsidiaries, in each case, in compliance with this Indenture; provided
that such Investments were not made by such Person in connection with or in contemplation
of such acquisition, merger or consolidation; |
| (t) | Investments
in Permitted Joint Ventures and Unrestricted Subsidiaries made after the Original Issue Date
in an amount, when taken together with all other Investments made pursuant to this clause
(t) since the Original Issue Date and then outstanding, not to exceed $25.0 million; |
| (u) | Investments
in Permitted Joint Ventures in connection with reorganizations and related activities related
to tax planning; and |
| (v) | other
Investments not otherwise permitted under this definition in an aggregate amount, when taken
together with all other Investments made pursuant to this clause (w) that are at the
time outstanding, not to exceed the greater of (a) $60.0 million and (b) 10.0%
of Consolidated Total Assets as of the last date of the most recently ended Four-Quarter
Period; |
provided,
however, that with respect to any Investment, the Company may, in its sole discretion, at any time allocate or re-allocate all or
any portion of such Investment to one or more of the above clauses (a) through (v) so that all or a portion of such Investment
would be a Permitted Investment.
The
amount of any Investment shall be measured on the date each such Investment was made and without giving effect to subsequent changes
in value other than as a result of repayments of loans or advances, redemptions, returns of capital, sales or other dispositions thereof
or similar events.
“Permitted
Joint Venture” means, with respect to any Person at any time, any corporation, partnership, limited liability company or other
business entity (1) of which at least 20%, but not more than 50%, of the Voting Stock is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the Restricted Subsidiaries (other than a Receivables Subsidiary) of that Person and
(2) whose primary business constitutes or is reasonably expected to constitute at such time a Permitted Business.
“Permitted
Liens” means:
| (a) | Liens
existing on the Original Issue Date or pursuant to agreements in existence on the Original
Issue Date, other than pursuant to clause (b) below; |
| (b) | Liens
to secure First Lien Obligations incurred pursuant to clause (i) of the definition of
“Permitted Debt”; provided that, in each case, the First Lien Collateral
Agent, or another agent for the holders of such Liens, shall have entered into the Intercreditor
Agreement or a supplement or amendment thereto agreeing on behalf of the holders of such
Liens to be bound by the terms thereof applicable to the holders of the First Lien Obligations; |
| (c) | Liens
for taxes, assessments or governmental charges or claims that are not yet delinquent or that
are being contested in good faith, if such proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien; provided that
any reserve or other appropriate provision as is required in conformity with GAAP has been
made therefor or for property taxes on property if the Company or one of its Restricted Subsidiaries
has determined to abandon such property and if the sole recourse for such tax, assessment,
charge, levy or claim is to such property; |
| (d) | Liens
imposed or permitted by applicable federal, state, provincial, municipal, territorial, local
or statutory law, rules or regulations, including, but not limited to, carrier’s,
freight forwarder’s, warehousemen’s, materialmen’s, repairmen’s,
logger’s, contractor’s, supplier of materials, architects’, mechanic’s,
landlord’s or other similar Liens and inchoate statutory Liens arising under ERISA,
in each case, incurred in the ordinary course of business for sums not then due or payable
or past due by more than sixty (60) days (or which are being contested in good faith and,
to the extent necessary to prevent the forfeiture or sale of the property or assets subject
to any such Lien, by appropriate proceedings); |
| (e) | survey
exceptions, encumbrances, ground leases, easements or reservations of; or rights of others
for, licenses, rights-of-way, servitudes, drains, sewers, utilities (including Liens securing
the payment of charges for hydroelectricity), electric lines, telegraph and telephone and
cable television lines and other similar purposes, or zoning, building codes, or other similar
restrictions (including minor defects and irregularities in title and similar encumbrances)
as to the use of real properties or Liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not incurred in connection with Debt
and which do not in the aggregate materially impair the operation of the business of the
Company and its Restricted Subsidiaries, taken as a whole; |
| (f) | Liens,
pledges, deposits and security (i) in connection with workers’ compensation, unemployment
insurance, employers’ health tax, social security benefits and other types of statutory
obligations, insurance related obligations or the requirements of any official body (including,
but not limited to, in respect of deductibles, self-insured retention amounts and premiums
and adjustments thereto); (ii) to secure the performance of tenders, bids, surety, warranty,
release, appeal or performance bonds, leases, purchase, construction, sales or servicing
contracts and other similar obligations Incurred in the ordinary course of business consistent
with industry practice; (iii) to secure indemnification obligations (including to obtain
or secure obligations with respect to letters of credit, Guarantees, bonds or other sureties
or assurances) given in connection with the activities described in clauses (i) and
(ii) above, in each case not Incurred or made in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred purchase price of property
or services; (iv) arising in connection with any attachment or judicial proceeding unless
the Liens so arising shall not be satisfied or discharged or stayed pending appeal within
sixty (60) days after the entry thereof or the expiration of any such stay; or (v) to
secure the payment or performance of statutory or public obligations (including environmental,
municipal and public utility commission obligations and requirements); |
| (g) | Liens
(x) on property or shares of stock or other assets of a Person existing at the time
such Person is merged with or into or consolidated or amalgamated with the Company or any
of its Restricted Subsidiaries; provided, that such Liens were not created or incurred
in the contemplation of such merger, consolidation or amalgamation and do not extend to any
assets other than those of the Person merged with or into or consolidated or amalgamated
with the Company or any Restricted Subsidiary (other than after-acquired property that is
(1) affixed or appurtenant thereto or incorporated into the property covered by such
Lien, (2) after-acquired property of such Person subject to a Lien securing such Debt,
the terms of which Debt require or include a pledge of after-acquired property and (3) the
proceeds and products thereof or improvements thereon); (y) on property (including Capital
Stock) existing at the time of acquisition of the property by the Company or any of its Restricted
Subsidiaries; provided, that such Liens were in existence prior to such acquisition,
and not incurred in contemplation of, such acquisition; and (z) on assets, property
or shares of Equity Interests of another Person at the time such other Person becomes a Subsidiary
of the Company or any of its Restricted Subsidiaries; provided, however, that
(A) the Liens may not extend to any other property owned by such Person or any of its
Restricted Subsidiaries (other than after-acquired property that is (1) affixed or appurtenant
thereto or incorporated into the property covered by such Lien, (2) after-acquired property
of such Person subject to a Lien securing such Debt, the terms of which Debt require or include
a pledge of after-acquired property and (3) the proceeds and products thereof or improvements
thereon) and (B) such Liens are not created or incurred in connection with, or in contemplation
of, such other Person becoming such a Restricted Subsidiary; |
| (h) | Liens
in favor of the Company or any of its Restricted Subsidiaries; provided that if such
Liens are on the assets of a Guarantor, such Liens are in favor of the Company or another
Guarantor ; |
| (i) | other
Liens (not securing Debt) incidental to the conduct of the business of the Company or any
of its Restricted Subsidiaries, as the case may be, or the ownership of their assets which
do not in the aggregate materially adversely affect the value of such assets, taken as a
whole, or materially impair the operation of the business of the Company and its Restricted
Subsidiaries, taken as a whole; |
| (j) | Liens
to secure any Refinancing Debt incurred in compliance with this Indenture to refinance Debt
secured by Liens referred to in clauses (a), (g), (m), (o), (u), (gg) (provided that
capacity under clause (gg) shall not be deemed to be refreshed), (hh), (mm) (provided
that if the Debt being refinanced constitutes Junior Lien Obligations, the Liens to secure
any Refinancing Debt in respect thereof shall constitute Junior Lien Obligations, and the
same requirement will apply to successive financings) or (nn) (provided that capacity
under clause (nn) shall not be deemed to be refreshed) of this definition or to this clause
(j); provided that (x) such Liens do not extend to any property or assets other
than the property or assets securing the Debt being extended, renewed, refinanced or refunded
and after-acquired property affixed or incorporated in the property covered by such Lien
or subject to a Lien securing such Debt and (y) the principal amount (or accreted value,
if applicable) of the obligations secured by such Liens is not increased (except to the extent
of any premiums, underwriting discounts, original issue discount and other fees, commissions,
expenses paid and transaction costs incurred in connection with such extension, renewal,
refinancing or refunding); |
| (k) | Liens
in favor of customs or revenue authorities arising as a matter of law to secure payment of
custom duties in connection with the importation of goods in the ordinary course of business; |
| (l) | Liens
arising out of licenses, leases, sublicenses and subleases of assets (including real property
and intellectual property rights) or on vehicles or equipment, in each case, in the ordinary
course of business; |
| (m) | Liens
securing Debt (including Capital Lease Obligations) permitted to be incurred pursuant to
clause (x) of the definition of “Permitted Debt,” covering only the property
or assets (or property affixed or appurtenant thereto and any proceeds thereof) acquired
with or financed by such Debt; |
| (n) | Liens
upon specific items of inventory or other goods (and the proceeds thereof) of any Person
securing such Person’s obligation in respect of banker’s acceptances or trade
letters of credit issued or created in the ordinary course of business for the account of
such Person to facilitate the purchase, shipment, or storage of such inventory or other goods; |
| (o) | Liens
securing Debt (or Obligations in respect of such Debt) Incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property, plant or equipment
of such Person; provided, however, that the Lien may not extend to any property
owned by such Person or any of its Restricted Subsidiaries at the time the Lien is Incurred
(other than assets and property acquired, constructed, purchased, leased, repaired or improved
with the proceeds of such Debt or affixed or appurtenant thereto and any proceeds and products
thereof), and the Debt (other than any interest thereon) secured by the Lien must be permitted
by Section 4.9; |
| (p) | banker’s
Liens, Liens that are contractual rights of set-off and similar Liens (A) relating to
the establishment of depository relations with banks not given in connection with the issuance
of Debt, (B) relating to pooled deposit or sweep accounts of the Company or any of its
Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations and other
cash management activities incurred in the ordinary course of business of the Company and
its Restricted Subsidiaries or (C) relating to purchase orders and other agreements
entered into with customers of the Company or any of its Restricted Subsidiaries in the ordinary
course of business and (ii) Liens of a collection bank arising under Section 4-210
of the UCC (or any comparable or successor provision) on items in the course of collection,
(X) encumbering reasonable customary initial deposits and margin deposits and attaching
to commodity trading accounts or other brokerage accounts incurred in the ordinary course
of business, and (Y) in favor of banking institutions arising as a matter of law or
pursuant to customary account agreements encumbering deposits (including the right of set-off)
and which are within the general parameters customary in the banking industry ; |
| (q) | Liens
(i) arising by reason of any judgment, order or decree, but not giving rise to an Event
of Default, (ii) arising pursuant to an order of attachment, condemnation, eminent domain,
distraint or similar legal process arising in connection with legal proceedings, but not
giving rise to an Event of Default, (iii) that are required to protect or enforce rights
in any administrative, arbitration or other court proceeding in the ordinary course of business,
but not giving rise to an Event of Default so long as such Liens are adequately bonded and
any appropriate legal proceedings that may have been duly initiated for the review of such
judgment have not been finally terminated or the period within which such proceedings may
be initiated has not expired and (iv) arising out of judgments or awards with regard
to which an appeal or other proceeding for review is in process; |
| (r) | Deposits
made or other security in the ordinary course of business to secure liability to insurance
carriers and Liens securing insurance premium financing arrangements; |
| (s) | Liens
arising from UCC financing statement filings (including as a precautionary measure) in connection
with Capital Lease Obligations permitted to be incurred pursuant to clause (x) of the
definition of “Permitted Debt,” operating leases or consignments entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of business,
in each case, covering only the property or assets (or property affixed or appurtenant thereto
and any proceeds thereof) acquired with, financed by or subject to such leases or consignments; |
| (t) | Liens
on the assets of a Restricted Subsidiary that is not a Guarantor securing Debt and other
obligations of a Restricted Subsidiary that is not a Guarantor incurred in compliance with
this Indenture (including Liens incurred in connection with a Qualified Receivables Transaction); |
| (u) | (A) Liens
on the Collateral granted under the Security Documents in favor of the Collateral Agent to
secure the Notes (including Additional Notes to the extent constituting Additional Second
Lien Obligations) and all corresponding Obligations under the Note Documents (including the
Notes Guarantees), and administrative expenses of the Collateral Agent and (B) Liens
on the Collateral securing Existing Notes Obligations and any Additional Second Lien Obligations; |
| (v) | Liens
(i) on assets purported to be sold or otherwise transferred to a Receivables Subsidiary,
(ii) over bank accounts of the Company or any Restricted Subsidiary, into which assets
of the Qualified Receivables Transaction are paid or (iii) on Equity Interests in a
Receivables Subsidiary or on assets of a Receivables Subsidiary, in each case, created, incurred
or arising in connection with a Qualified Receivables Transaction; |
| (w) | any customary
provisions limiting the disposition or distribution of assets or property (including Equity
Interests) or any related restrictions thereon in joint venture, partnership, membership,
stockholder and limited liability company agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements and other similar agreements, including owners’ participation
or similar agreements governing projects owned through an undivided interest; provided,
however, that any such limitation is applicable only to the assets that are the subjects
of such agreements; |
| (x) | Liens
granted by a Person in favor of a commercial trading counterparty pursuant to a netting agreement,
which Liens encumber rights under agreements that are subject to such netting agreement and
which Liens secure such Person’s obligations to such counterparty under such netting
agreement; provided that any such agreements and netting agreements are entered into
in the ordinary course of business; and provided, further, that the Liens are
incurred in the ordinary course of business and when granted, do not secure obligations which
are past due; |
| (y) | Liens
securing Hedging Obligations permitted to be incurred under this Indenture; |
| (z) | Liens
on raw materials or on manufactured products as security for any drafts or bills of exchange
drawn in connection with the importation of such raw materials or manufactured products ; |
| (aa) | Liens
consisting of conditional sale, title retention, consignment or similar arrangements for
the sale of goods acquired by the Company or any of its Restricted Subsidiaries in the ordinary
course of business; |
| (bb) | any pledge
of the Equity Interests of an Unrestricted Subsidiary to secure Debt or other obligations
of such Unrestricted Subsidiary; |
| (cc) | Liens
on any cash earnest money deposits made by the Company or any Restricted Subsidiary in connection
with any letter of intent or purchase agreement; |
| (dd) | Liens
in the nature of the right of setoff in favor of counterparties to contractual agreements
with the Company or any Restricted Subsidiary in the ordinary course of business; |
| (ee) | Liens
arising by operation of law under Article 2 of the Uniform Commercial Code in favor
of a reclaiming seller of goods or buyer of goods; |
| (ff) | Liens
on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge
or redemption of Debt; |
| (gg) | Liens
Incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries
with respect to Obligations in an aggregate principal amount that does not exceed $25.0 million
at any one time outstanding; |
| (hh) | Liens
securing Obligations in respect of Debt incurred pursuant to clause (xxii) of the definition
of the term “Permitted Debt” so long as such Debt constitutes Additional Second
Lien Obligations; |
| (ii) | Liens
arising or imposed under ERISA or the Code in connection with any “plan” (as
defined in ERISA); provided that reasonable and appropriate provision has been made
in accordance with GAAP for the payment of the obligations secured thereby; |
| (jj) | Liens
on accounts receivable and any assets related thereto, customarily created in connection
with sales, assignments, transfers or other dispositions of accounts receivable in transactions
not involving the Incurrence of Debt, and entered into in the ordinary course of business
and consistent with past practice; |
| (kk) | Liens
securing Cash Management Agreements and related Obligations entered into in the ordinary
course of business; |
| (ll) | Liens
(x) deemed to exist in connection with Permitted Investments in repurchase agreements,
(y) on cash advances in favor of the seller of any property to be acquired in an Investment
to be applied against the purchase price for such Investment or (z) consisting of an
agreement to sell, transfer, lease or otherwise dispose of any property in a transaction
permitted under this Indenture in each case, solely to the extent such Investment or sale,
disposition, transfer or lease, as the case may be, would have been permitted on the date
of creation of such Lien; |
| (mm) | Liens securing
Obligations in respect of Debt incurred pursuant to the first paragraph of Section 4.9;
provided that (x) such Liens may secure Debt that constitutes either Additional
Second Lien Obligations or Junior Lien Obligations to the extent the Consolidated Secured
Debt Ratio for the most recently ended Four-Quarter Period for which internal financial statements
are available immediately preceding the date on which such Debt is Incurred would have been
no greater than 2.50 to 1.00, determined on a Pro Forma Basis, and (y) otherwise, such
Liens may secure Debt that constitutes Junior Lien Obligations; |
| (nn) | other
Liens securing obligations which do not exceed an amount at any one time outstanding equal
to the greater of (x) $60.0 million and (y) 10.0% of Consolidated Total Assets;
and |
| (oo) | any extensions,
modifications, refundings, substitutions, replacements or renewals (or successive extensions,
refundings, replacements or renewals) of the foregoing; provided that any Liens securing
Debt on a junior basis to the Liens securing the Note Obligations prior to being extended,
modified, refunded, substituted, replaced or renewed pursuant to this clause (oo) may only
be extended, modified, refunded, substituted, replaced or renewed pursuant to this clause
(oo) with Liens that are junior to the Liens securing the Note Obligations. |
Notwithstanding
any of the foregoing to the contrary, Liens securing First Lien Obligations will only constitute Permitted Liens to the extent incurred
pursuant to clause (b) of this definition.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership,
Governmental Authority or other entity.
“Pro
Forma Basis” means, with respect to the calculation of any test, financial ratio, basket or covenant under this Indenture,
including for purposes of determining the Consolidated Fixed Charge Coverage Ratio, the Consolidated Total Leverage Ratio, the Consolidated
Secured Debt Ratio, and Consolidated Total Assets, of any Person and its Restricted Subsidiaries, or the Borrowing Base, as of any date,
that pro forma effect will be given to the transactions and events giving rise to the need to make such calculation, including
any acquisition, merger, amalgamation, consolidation, Investment, Incurrence of Debt (including Debt issued, Incurred
or assumed or repaid or redeemed as a result of, or to finance, any relevant transaction and for which any such test, financial ratio,
basket or covenant is being calculated), any other issuance or redemption of preferred stock or Disqualified Stock, Asset Sales or other
sales, transfers and other dispositions or discontinuance of any Subsidiary, lines of business, divisions, segments or operating units,
any operational change (including the entry into any material contract or arrangement) or any designation of a Restricted Subsidiary
as an Unrestricted Subsidiary or of an Unrestricted Subsidiary as a Restricted Subsidiary, in each case, that have occurred during the
Company’s four most recent full fiscal quarters for which internal financial statements are available immediately preceding the
date of the transaction or event giving rise to the need to make such calculation (such four full fiscal quarter period being referred
to herein as the “Four-Quarter Period”), or subsequent to the end of such Four-Quarter Period but on or prior to or
simultaneously with the date of calculation or event or transaction for which a determination under this definition is made (including
any such event occurring at a Person who became a Restricted Subsidiary of the subject Person or was merged, amalgamated or consolidated
with or into the subject Person or any other Restricted Subsidiary of the subject Person after the commencement of the applicable Four-Quarter
Period), as if each such event and transaction occurred on the first day of that Four-Quarter Period. Whenever pro forma effect is to
be given with respect to a transaction or event pursuant to this definition, pro forma calculations with respect thereto may include the
amount of “run-rate” cost savings, operating expense reductions (including as a result of entering into any material contract
or arrangement, strategic initiatives and purchasing improvements) charges attributable to the undertaking and/or implementation of cost
savings initiatives and improvements, business optimization and other restructuring and integration charges and other synergies resulting
from or relating to such transaction or event projected by the Company in good faith to be realized as a result of actions taken or with
respect to which substantial steps have been taken or are expected to be taken (calculated on a pro forma basis as though such net costs
savings, operating expense reductions, charges and other synergies had been realized on the first day of such period and as if such net
costs savings, operating expense reductions, charges and other synergies were realized during the entirety of such period and such that
“run-rate” means the full recurring benefit for a period that is associated with any action taken, for which substantial
steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s
compliance costs with Public Company Costs) net of the amount of actual benefits realized during such period from such actions), and
any such adjustments shall be included in the initial pro forma calculations of such financial ratios, tests baskets or covenants relating
to such transaction or event (and in respect of any subsequent pro forma calculations in which such transaction or costs savings, operating
expense reductions and synergies are given pro forma effect) and during any applicable subsequent Four-Quarter Period for any subsequent
calculation of such financial ratios, tests, baskets and covenants; provided that (A) such amounts are reasonably identifiable
and factually supportable in the good faith judgment of the Company as set forth in an Officer’s Certificate of the Company, (B) such
amounts have been realized, or are reasonably expected to be realized, within eighteen (18) months of the date of such transaction, (C) no
amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any
other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate
of such amounts added back in computing Consolidated EBITDA (or any other components thereof) with respect to such period shall not exceed
20% of Consolidated EBITDA calculated prior to giving effect to such amounts being added back). Any calculation may include adjustments
appropriate to reflect all adjustments included in the calculation of Adjusted EBITDA set forth in the offering circular for the Existing
Notes.
For
purposes of making any computation referred to above:
| (1) | if any
Debt bears a floating rate of interest and is being given pro forma effect, the interest
on such Debt shall be calculated as if the rate in effect on the date for which a determination
under this definition is made had been the applicable rate for the entire period (taking
into account any hedging obligations applicable to such Debt); |
| (2) | interest
on a Capital 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 Capital Lease Obligation in accordance with GAAP; |
| (3) | interest
on any Debt under a revolving credit facility computed on a Pro Forma Basis shall be computed
based upon the average daily balance of such Debt during the applicable period; |
| (4) | interest
on Debt that may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to
have been based upon the rate actually chosen, or, if none, then based upon such optional
rate chosen as the Company may designate; and |
To
the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under
the Securities Act of 1933, as amended.
“Public
Company Costs” means costs relating to compliance with the provisions of the Securities Act of 1933 and the Securities Exchange
Act of 1934, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs
relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’
insurance and other executive costs, legal and other professional fees, and listing fees.
“Purchase
Money Note” means a promissory note of a Receivables Subsidiary to the Company or any of its Restricted Subsidiaries, which
note must be repaid from cash available to the Receivables Subsidiary, other than amounts required to be established as reserves pursuant
to agreements, amounts paid to investors in respect of interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated receivables. The repayment of a Purchase Money Note may be subordinated to the repayment
of other liabilities of the Receivables Subsidiary on terms determined in good faith by the Company to be substantially consistent with
market practice in connection with Qualified Receivables Transactions.
“Qualified
Receivables Transaction” means any transaction or series of transactions entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any of its Subsidiaries sells, conveys or otherwise transfers to (a) a Receivables Subsidiary (in
the case of a transfer by the Company or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Receivables
Subsidiary), or may grant a security interest in or pledge, any accounts receivable or interests therein (whether now existing or arising
in the future) of the Company or any of its Subsidiaries, and any assets related thereto, including, without limitation, all collateral
securing such accounts receivable, all contracts and contract rights, purchase orders, security interests, financing statements or other
documentation in respect thereof, and all Guarantees, indemnities, warranties or other documentation or other obligations in respect
of such accounts receivable, proceeds of such accounts receivable and any other assets which are customarily transferred, or in respect
of which security interests are customarily granted, in connection with asset securitization transactions involving accounts receivable
and any collections or proceeds of the foregoing.
“Receivables
Subsidiary” means a Subsidiary of the Company:
| (1) | that engages
in no activities other than activities in connection with the financing of accounts receivable
of the Company and/or its Restricted Subsidiaries; |
| (2) | that is
designated by the Board of Directors of the Company as a Receivables Subsidiary pursuant
to a resolution set forth in an Officer’s Certificate and delivered to the Trustee; |
| (3) | no portion
of the Debt or any other obligation (contingent or otherwise) of which (a) is at any
time Guaranteed by the Company. or any of its Restricted Subsidiaries (excluding Guarantees
of obligations (other than the principal of, and interest on, Debt) pursuant to Standard
Securitization Undertakings), (b) is at any time recourse to or obligates the Company
or any of its Restricted Subsidiaries in any way, other than pursuant to Standard Securitization
Undertakings or (c) subjects any asset of the Company or any other Restricted Subsidiary
of the Company (other than accounts receivable and related assets as provided in the definition
of “Qualified Receivables Transaction”), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings; |
| (4) | with which
neither the Company nor any of its Restricted Subsidiaries has any material contract, agreement,
arrangement or understanding other than (a) those entered into in the ordinary course
of business on terms no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons that are not Affiliates of the Company,
(b) fees payable in the ordinary course of business in connection with servicing accounts
receivable and (c) any Purchase Money Note issued by such Receivables Subsidiary to
the Company or any of its Restricted Subsidiaries; and |
| (5) | with respect
to which neither the Company nor any other Restricted Subsidiary of the Company has any obligation
to maintain or preserve such Subsidiary’s financial condition or cause such Subsidiary
to achieve certain levels of operating results. |
“Redemption
Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Refinancing
Debt” means Debt that refunds, refinances, renews, replaces, repays, purchases, redeems, defeases, retires or extends any Debt
permitted to be Incurred by the Company or any of its Restricted Subsidiaries pursuant to the terms of this Indenture, whether involving
the same or any other lender or creditor or group of lenders or creditors, but only to the extent that
| (i) | the Refinancing
Debt is subordinated in right of payment to the Notes to at least the same extent as the
Debt being refunded, refinanced, renewed, replaced, repaid, purchased, redeemed, defeased,
retired or extended, if such Debt was subordinated in right of payment to the Notes, |
| (ii) | the Refinancing
Debt is scheduled to mature either (a) no earlier than the Debt being refunded, refinanced,
renewed, replaced, repaid, purchased, redeemed, defeased, retired or extended or (b) at
least 91 days after the maturity date of the Notes, |
| (iii) | the
Refinancing Debt has a weighted average life to maturity at the time such Refinancing Debt
is Incurred that is equal to or greater than the weighted average life to maturity of the
Debt being refunded, refinanced, renewed, replaced, repaid, repurchased, redeemed, defeased,
retired or extended, |
| (iv) | such
Refinancing Debt is in an aggregate principal amount that is less than or equal to the sum
of (a) the aggregate principal or accreted amount (in the case of any Debt issued with
original issue discount) then outstanding under the Debt being refunded, refinanced, renewed,
replaced, repaid, purchased, redeemed, defeased, retired or extended, (b) the amount
of accrued and unpaid interest and premiums (including tender premiums), if any, on such
Debt being refunded, refinanced, renewed, replaced, repaid, purchased, redeemed, defeased,
retired or extended and (c) the amount of all fees (including underwriting discounts
and other arranger fees), commissions, expenses and costs (including original issue discounts
or similar payments Incurred in connection therewith) related to the Incurrence of such Refinancing
Debt, and |
| (v) | such Refinancing
Debt shall not include (x) Debt of a Restricted Subsidiary that is not a Guarantor that
refinances Debt of the Company or a Guarantor that could not have been initially Incurred
by such Restricted Subsidiary pursuant to Section 4.9 or(y) Debt of the Company
or a Restricted Subsidiary that refinances Debt of an Unrestricted Subsidiary. |
“Registrar”
means any Person authorized by the Company to maintain the Note Register.
“Registered
Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction
under the Securities Act of 1933, substantially identical notes (having the same guarantees and substantially the same collateral provisions)
issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Replacement
Assets” means (i) assets not classified as current assets under GAAP that are used or useful in a Permitted Business,
(ii) all or substantially all of the assets of, or any Equity Interests of, another Permitted Business, if, after giving effect
to any such acquisition of Equity Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company or (iii) Equity
Interests constituting a minority interest in any Person that at such time is a Restricted Subsidiary of the Company.
“Resale
Restriction Termination Date” has the meaning set forth in the Restricted Notes Legend.
“Responsible
Officer” means, when used with respect to the Trustee, any officer of the Trustee within the Corporate Trust Office (or any
successor unit or department) who customarily performs functions similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity
with the particular subject and who shall have direct responsibility for administration of this Indenture.
“Restricted
Notes Legend” means the legend identified as such in Exhibit A hereto.
“Restricted
Payment” is defined to mean any of the following:
| (a) | any dividend
or other distribution declared and paid on the Equity Interests in the Company or any of
its Restricted Subsidiaries to the direct or indirect holders thereof in their capacity as
such (other than (i) any dividends or distributions to the extent payable in Equity
Interests (other than Disqualified Stock) in the Company and (ii) dividends or distributions
payable to the Company or any of its Restricted Subsidiaries (and if such Restricted Subsidiary
has stockholders other than the Company or other Restricted Subsidiaries, to its stockholders
on no more than a pro rata basis)); |
| (b) | any payment
made by the Company or any of its Restricted Subsidiaries (other than to the extent payment
is made in Equity Interests (other than Disqualified Stock) in the Company) to purchase,
redeem, acquire or retire for value any Equity Interests in the Company or any of its Restricted
Subsidiaries (including any issuance of Debt in exchange for such Equity Interests or the
conversion or exchange of such Equity Interests into or for Debt) other than any such Equity
Interests held by the Company or any of its Restricted Subsidiaries; |
| (c) | any payment
made by the Company or any of its Restricted Subsidiaries (other than to the extent payment
is made in Equity Interests (other than Disqualified Stock) in the Company) to redeem, purchase,
repurchase, defease or otherwise acquire or retire for value, prior to the scheduled final
maturity, scheduled repayment or schedule sinking fund payment, any Debt (excluding any intercompany
Debt between the Company and any of its Restricted Subsidiaries or among Restricted Subsidiaries
of the Company) that is contractually subordinated in right of payment to the Notes or any
Note Guarantee (it being understood that, in each case, that payments of regularly scheduled
principal and interest and mandatory prepayments, redemptions or offers to purchase shall
be permitted), except payments of principal or interest in anticipation of satisfying a sinking
fund obligation or final maturity, in each case, within one year of the due date thereof;
or |
| (d) | any Investment
by the Company or any of its Restricted Subsidiaries in any Person, other than a Permitted
Investment. |
“Restricted
Subsidiary” means the Company and any other Subsidiary of the Company that is not an Unrestricted Subsidiary.
“S&P”
means Standard & Poor’s Rating Services and its successors.
“Sale
and Leaseback Transaction” means any direct or indirect arrangement, or series of arrangements, pursuant to which property,
real or personal, now owned or hereafter acquired by the Company or any of its Restricted Subsidiaries is sold, transferred or otherwise
disposed of to a Person and in connection therewith is thereafter rented or leased back by the Company or any of its Restricted Subsidiaries
from such Person with the intention to use for substantially the same purpose or purposes as the property being sold, transferred or
disposed.
“SEC”
means the Securities and Exchange Commission and any successor thereto. “Securities Act” means the Securities Act
of 1933, as amended.
“Second
Lien Claimholders” means the Initial Second Lien Claimholders, the Note Claimholders and any Additional Second Lien Claimholders.
“Second
Lien Collateral” means any “Collateral,” “Pledged Collateral” or similar term as defined in any Second
Lien Debt Document or any other assets of the Company or any Guarantor with respect to which a Lien is granted, purported to be granted
or required to be granted pursuant to a Second Lien Debt Document as security for any Second Lien Obligations and shall include any property
or assets subject to replacement Liens or adequate protection Liens in favor of any Second Lien Claimholder.
“Second
Lien Collateral Agent” means (i) in the case of the Note Obligations, the Collateral Agent and (ii) in the case of
any other Additional Second Lien Obligations and the Additional Second Lien Claimholders in respect thereof, the Person serving as collateral
agent (or the equivalent) for such Additional Second Lien Obligations and that is named as the Second Lien Collateral Agent in respect
of such Additional Second Lien Obligations in the applicable joinder agreement (each, in the case of this clause (ii), together
with its successors and assigns in such capacity, an “Additional Second Lien Collateral Agent”).
“Second
Lien Collateral Documents” means the “Security Documents” or “Collateral Documents” (as defined in
the applicable Second Lien Debt Documents) and any other agreement, document or instrument pursuant to which a Lien is granted securing
any Second Lien Obligations or pursuant to which any such Lien is perfected.
“Second
Lien Debt” means the Initial Second Lien Debt, the Notes and any Additional Second Lien Debt.
“Second
Lien Debt Documents” means the Initial Second Lien Debt Documents, the Note Documents and any Additional Second Lien Debt Documents.
“Second
Lien Obligations” means the Existing Notes Obligations, the Note Obligations and any Additional Second Lien Obligations, including
Additional Notes, and shall not include, for the avoidance of doubt, any Excluded Swap Obligations.
“Second
Lien Pari Passu Intercreditor Agreement” means an agreement among each Second Lien Representative and each Second Lien Collateral
Agent allocating rights among the various Series of Second Lien Obligations.
“Second
Lien Representative” means (i) in the case of Existing Notes Obligations or the Initial Second Lien Claimholders, the
Initial Second Lien Representative, (ii) in the case of the Note Obligations or the Note Claimholders, Deutsche Bank Trust Company
Americas in its capacity as Collateral Agent therefor and (iii) in the case of any other Additional Second Lien Obligations and
the Additional Second Lien Claimholders in respect thereof, each trustee, administrative agent, collateral agent, security agent and
similar agent that is named as the Second Lien Representative in respect of such Additional Second Lien Obligations in the applicable
joinder agreement (each, in the case of this clause (iii), together with its successors and assigns in such capacity, an “Additional
Second Lien Representative”).
“Security
Agreement” means (i) the security agreement to be dated as of the Issue Date among the Collateral Agent, the Company and
the Guarantors, as amended, supplemented or otherwise modified from time to time in accordance with its terms and (ii) any other
security agreement that may be entered into after the Issue Date by the Company, the Collateral Agent and any Guarantors, identical in
form and substance to the security agreement referred to in clause (i) of this definition except with such changes as are necessary
for such document to be governed by U.S. law and to perfect the Note Liens in Collateral of such Guarantors, as amended, supplemented
or otherwise modified from time to time in accordance with its terms and the terms of this Indenture.
“Security
Documents” means the Security Agreement, the Intercreditor Agreement, any Second Lien Pari Passu Intercreditor Agreement, any
mortgages and all of the security agreements, hypothecs, debentures, fixed and floating charges, pledges, collateral assignments, deeds
of trust, trust deeds or other instruments evidencing or creating or purporting to create any security interests in favor of the Collateral
Agent for its benefit and for the benefit of the Trustee and the Holders and the holders of any Second Lien Obligations, in all or any
portion of the Collateral, as amended, modified, restated, supplemented or replaced from time to time.
“Senior
Management” means the chief executive officer and the chief financial officer of the Company.
“Series”
means, (x) with respect to First Lien Debt or Second Lien Debt, all First Lien Debt or Second Lien Debt, as applicable, represented
by the same Representative acting in the same capacity and (y) with respect to First Lien Obligations or Second Lien Obligations,
all such obligations secured by same First Lien Collateral Documents or same Second Lien Collateral Documents, as the case may be.
“Significant Subsidiary”
means any Restricted Subsidiary that would be a “significant subsidiary” as deemed in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
“Sponsor”
means TDR Capital LLP, a limited liability company organized under the laws of England and Wales, having its registered office at 20
Bentinck, London W1U 2EU and being registered with Companies House under number OC302604.
“Sponsor Affiliates”
means (a) TDR Capital II Holdings LP (as hereinafter used in this definition, the “TDR Investor”) and any other
fund (including, without limitation, any unit trust, investment trust, limited partnership or general partnership) which is advised by,
or the assets of which are managed (whether solely or jointly with others) from time to time by, the Sponsor or the TDR Investor (or
a group controlled by and whose members include the Sponsor and/or the TDR Investor or their Affiliates (other than Holdings or any of
its Subsidiaries or any portfolio company of the Sponsor or the TDR Investor)); and (b) any other fund (including, without limitation,
any unit trust, investment trust, limited partnership or general partnership) of which the Sponsor or the TDR Investor (or a group controlled
by and whose members include the Sponsor and/or the TDR Investor or their Affiliates (other than Holdings or any of its Subsidiaries
or any portfolio company of the Sponsor or the TDR Investor)) or the TDR Investor’s general partner, trustee or nominee, is a general
partner, manager, adviser, trustee or nominee (but, for the avoidance of doubt, excluding any of Holdings or any of its Subsidiaries
or any portfolio company of the Sponsor or the TDR Investor).
“Standard Securitization
Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any of its Subsidiaries
which are reasonably customary in an accounts receivable securitization transaction in connection with a Qualified Receivables Transaction.
“Stated Maturity,”
when used with respect to any Debt (including the Notes) or any installment of interest thereon, means the date specified in the instrument
governing such Debt as the fixed date on which the principal of such Debt or such installment of interest is due and payable, and will
not include any contingent obligations to repay, redeem or repurchase any such principal or interest prior to the date originally scheduled
for the payment thereof.
“Subsidiary”
means, with respect to any Person, (a) any corporation, association or other business entity (other than a partnership, joint venture,
limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled to
vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, and (b) any partnership, joint
venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total
equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise, and (y) such Person or any Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.
“Swap Contract”
means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options for forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement, including such obligations or liabilities under any such master agreement.
“Swap Obligation”
means, with respect any Person, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap”
within the meaning of Section 1a(47) of the Commodity Exchange Act, as amended from time to time.
“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).
“Transaction Expenses”
means any fees or expenses incurred or paid by the Company or its Restricted Subsidiaries in connection with the Transactions.
“Transactions”
means the transactions described under “Description of the Exchange Offer and the Consent Solicitation” in the Offering
Memorandum.
“Transfer Restricted
Notes” means Notes that bear or are required to bear the Restricted Notes Legend.
“Treasury Rate”
means with respect to the Notes, at any redemption date, or March 15, 2024, if the Stated Maturity of the Notes is shortened because
the Existing Notes remain outstanding, the yield to maturity as of such redemption date or shortened maturity of United States Treasury
securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that
has become publicly available at least two (2) Business Days prior to such redemption date or shortened maturity (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 or shortened maturity to September 15, 2024; provided, however, that if no published maturity exactly corresponds
with such date, then the Treasury Rate shall be interpolated or extrapolated on a straight-line basis from the arithmetic mean of the
yields for the next shortest and next longest published maturities; provided further, however, that if the period
from such redemption date or shortened maturity to September 15, 2024, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee”
has the meaning set forth in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions
of this Indenture and, thereafter, means the successor.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, in
the event that, if by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to,
any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York,
the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes
of the provisions hereof relating to such perfection, priority or remedies.
“U.S. Government
Obligation” means:
| (1) | any security which is: (x) a direct
obligation of the United States of America the payment of which the full faith and credit
of the United States of America is pledged or (y) an obligation of a Person controlled
or supervised by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally Guaranteed as a full faith and credit obligation
of the United States of America, which, in either case, is not callable or redeemable at
the option of the issuer thereof; and |
| (2) | any depository receipt issued by a bank
(as defined in the Securities Act) as custodian with respect to any U.S. Government Obligation
and held by such bank for the account of the holder of such depository receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government Obligation which
is so specified and held, 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 principal or interest evidenced by such depository receipt. |
“Voting Stock”
of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding entitling
the holders thereof generally to vote on the election of members of the Board of Directors or comparable body of such Person.
Section 1.2
Other Definitions.
| Term |
Defined in Section |
| “ABL Credit Facility” |
1.1 |
| “Act” |
12.15 |
| “Advanced Offer to Purchase” |
4.14 |
| “Affiliate Transaction” |
4.11 |
| “Agent Members” |
2.6 |
| “Applicable Premium Deficit” |
8.8 |
| “Authentication Order” |
2.2 |
| “Base Currency” |
12.17 |
| “Change of Control Offer” |
4.14 |
| “Collateral Agent” |
Preamble |
| “covenant defeasance” |
8.3 |
| “defeasance” |
8.3 |
| “Discharge” |
8.8 |
| “Event of Default” |
6.1 |
“Excess Proceeds”
“Executed Documentation” |
4.10
12.21 |
| “Expiration Date” |
1.1 |
| “Four-Quarter Period” |
1.1 |
| “Guarantor” |
4.17 |
| “Judgment Currency” |
12.17 |
| “Initial Notes” |
Preamble |
| “legal defeasance” |
8.2 |
| “Note Register” |
2.3 |
| “Notes” |
Preamble |
| “Offer” |
1.1 |
| “Offer Amount” |
3.8 |
| Term |
Defined in Section |
| “Payment Default” |
6.1 |
| “Purchase Date” |
1.1 |
| “Purchase Price” |
4.14 |
| “QIB” |
2.1 |
| “QIB Global Note” |
2.1 |
| “rate(s) of exchange” |
12.17 |
| “redemption date” |
3.1 |
| “Redemption Price Premium” |
6.2 |
| “Regulation S” |
2.1 |
| “Regulation S Global Note” |
2.1 |
| “Restricted Period” |
2.14 |
| “Reversion Date” |
4.21 |
| “Rule 144A” |
2.1 |
| “Successor Guarantor” |
11.5 |
| “Surviving Entity” |
5.1 |
| “Suspended Covenants” |
4.21 |
| “Suspension Period” |
4.21 |
| “TLM Equipment” |
11.9 |
| “Unrestricted Subsidiary" |
4.18 |
Section 1.3
Trust Indenture Act Term.
The following TIA term used
in this Indenture has the following meaning:
“obligor”
on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and
the Note Guarantees, respectively.
Section 1.4
Rules of Construction.
Unless the context otherwise
requires:
| (1) | a term has the meaning assigned to it
herein; |
| (2) | an accounting term not otherwise defined
herein has the meaning assigned to it in accordance with GAAP; |
| (3) | “or” is disjunctive and not
necessarily exclusive; |
| (4) | words in the singular include the plural,
and in the plural include the singular; |
| (5) | “including” means including
without limitation; |
| (6) | unless otherwise specified, any reference
to a Section or an Article refers to such Section or Article of this
Indenture; |
| (7) | references to sections of or rules under
the Securities Act, the Exchange Act or the TIA shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time; |
| (8) | References to “$” are to U.S.
Dollars; and |
| (9) | Any reference herein to a merger, consolidation,
or transfer of assets, or similar terms, shall be deemed to apply to a division of or by
a limited liability company, or an allocation of assets to a series of a limited liability
company (or the unwinding of such a division or allocation), as if it were a merger, consolidation,
or transfer of assets, or similar term, as applicable, to, of or with a separate Person.
Any division of a limited liability company shall constitute a separate Person hereunder
(and each division of any limited liability company that is a Subsidiary, Restricted Subsidiary,
Unrestricted Subsidiary, joint venture or any other like term shall also constitute such
a Person or entity). |
Article II
THE
NOTES
Section 2.1
Form and Dating.
The Notes and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit A attached hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes initially shall be issued only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(a) The
Notes shall be issued initially in the form of one (1) or more Global Notes substantially in the form attached as Exhibit A hereto,
which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary,
and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided.
Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee
or the Note Custodian, at the direction of the Trustee, in accordance with written instructions given by the Holder thereof as required
by Section 2.6.
Except as set forth in Section 2.6,
the Global Notes may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor of the Depositary
or its nominee.
(b) The
Initial Notes are being issued by the Company only to “qualified institutional buyers” (as defined in Rule 144A under
the Securities Act (“Rule 144A”)) (“QIBs”) and outside the United States to persons other
than U.S. persons in reliance upon Regulation S under the Securities Act (“Regulation S”). Initial Notes to non-U.S.
persons that are Transfer Restricted Notes may be transferred to QIBs, in reliance on Rule 144A, outside the United States pursuant
to Regulation S or to the Company, in accordance with Section 2.14. Initial Notes that are offered in reliance on Rule 144A
shall be issued in the form of one (1) or more permanent Global Notes substantially in the form set forth in Exhibit A
(the “QIB Global Note”) deposited with the Trustee, as Notes Custodian, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. Initial Notes that are resold in offshore transactions in reliance on Regulation S shall be issued
in the form of one (1) or more Global Notes substantially in the form set forth in Exhibit A (the “Regulation
S Global Note”) deposited with the Trustee, as Notes Custodian, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The QIB Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers. The aggregate
principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee,
as Notes Custodian. Transfers of Notes to QIBs or pursuant to Regulation S shall be represented by appropriate increases and decreases
to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.14.
(c) Section 2.1(b) shall
apply only to Global Notes deposited with or on behalf of the Depositary.
The Company shall execute
and the Trustee shall, upon receipt of an Authentication Order, in accordance with Section 2.1(b) and Section 2.2, authenticate
and deliver the Global Notes, which (i) shall be registered in the name of the Depositary or the nominee of the Depositary and (ii) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Trustee as Note Custodian
for the Depositary.
None of the Trustee, the
Registrar or any Paying Agent shall have any responsibility or obligation to any Holder, any member of (or a Participant in) DTC or any
other Person with respect to the accuracy of the records of DTC (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 of any notice (including any notice of redemption) or the payment
of any amount or delivery of any Notes (or other security or property) under or with respect to the Notes. The Trustee may rely (and
shall be fully protected in relying) upon information furnished by DTC with respect to its members, Participants and any owners of beneficial
interests in the Notes.
(d) Notes
issued in certificated form, including Global Notes, shall be substantially in the form of Exhibit A attached hereto.
Section 2.2
Execution and Authentication.
An Officer shall sign the
Notes for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid
until authenticated by the manual or electronic signature of a Responsible Officer of the Trustee. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon receipt
of a written order of the Company signed by one Officer of the Company (an “Authentication Order”), authenticate Notes
for original issue up to the aggregate principal amount of the Notes that may be validly issued under this Indenture including (i) Initial
Notes for original issuance in an aggregate principal amount of $181,446,000 and (ii) subject to compliance with Sections 4.9 and
4.12, any Additional Notes for original issuance from time to time after the Issue Date.
The Trustee may appoint an
authenticating agent reasonably acceptable to the Company to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes to the same extent that the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or
the Company or an Affiliate of the Company.
Section 2.3
Registrar; Paying Agent.
The Company shall maintain
(i) an office or agency (which may be an office of the Trustee or an affiliate of the Trustee) where Notes may be presented to a
Registrar for registration of transfer or for exchange and (ii) an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee) where Notes may be presented to a Paying Agent for payment. The Registrar shall keep a register of the Notes
(the “Note Register”) and of their transfer and exchange. The Company may appoint one (1) or more co-registrars
and one (1) or more paying agents; provided, however, that at all times there shall be only one (1) Note
Register. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture. The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the provisions of Section 317(b) of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent.
The Company initially appoints
the Trustee to act as the Registrar and Paying Agent and initially designates the Corporate Trust Office of the Trustee as the office
or agency of the Company for such purposes.
The Company initially appoints
DTC to act as the Depositary with respect to the Global Notes.
Section 2.4
Paying Agent to Hold Money in Trust.
The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary thereof) shall have
no further liability for the money. If the Company or a Subsidiary thereof acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon the occurrence of events specified in clause (8) of
the first paragraph of Section 6.1, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5
Holder Lists.
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven (7) Business Days before each interest
payment date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders, including the aggregate principal amount of the Notes held by each Holder
thereof.
Section 2.6
Book-Entry Provisions for Global Securities.
(a) Each
Global Note shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends as required by Section 2.6(e).
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 the Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee, 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 Holder of any Note.
(b) Transfers
of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Beneficial interests in a Global Note may be transferred in accordance with Section 2.14 and the rules and
procedures of the Depositary. In addition, Certificated Notes shall be transferred to all owners of a beneficial interest in exchange
for their beneficial interests only if the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for
the Global Notes or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary
is not appointed by the Company within ninety (90) days of such notice.
(c) In
connection with the transfer of the entire Global Note to owners of beneficial interests pursuant to clause (b) of this Section 2.6,
such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
upon receipt of an Authentication Order authenticate and deliver, to each owner of a beneficial interest identified in writing by the
Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount of Certificated Notes of authorized
denominations.
(d) The
registered holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and persons that may
hold an interest through Agent Members, to take any action which a Holder is entitled to take under this Indenture or any Note.
(e) Each
Global Note shall bear the Global Note Legend on the face thereof. Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more temporary Global Notes bearing the Temporary Regulation S Notes Legend.
(f) At
such time as all beneficial interests in Global Notes have been exchanged for Certificated Notes, redeemed, repurchased or cancelled,
all Global Notes shall be returned to or retained by the Trustee and cancelled in accordance with Section 2.11. At any time prior
to such cancellation, if any beneficial interest in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or cancelled,
the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global
Note, by the Trustee or the Note Custodian at the direction of the Trustee, to reflect such reduction.
(g) General
provisions relating to transfers and exchanges, subject to Section 2.14:
(i) To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Certificated
Notes at the Registrar’s request.
(ii) No
service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.2, 2.10, 3.6, 4.10, 4.14 and 9.4 hereto).
(iii) All
Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes shall,
upon execution by the Company and authentication by the Trustee in accordance with the provisions hereof, be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes
surrendered upon such registration of transfer or exchange.
(iv) The
Registrar shall not be required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the
opening of fifteen (15) days before the day of any mailing of a notice of Notes selected for redemption under Section 3.2 and ending
at the close of business on the day of mailing, (B) to register the transfer of or to exchange any Note so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment date.
(v) Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest
on such Note and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary.
(vi) The
Trustee shall authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.2. Except as provided
in Section 2.6(b), neither the Trustee nor the Registrar shall authenticate or deliver any Certificated Note in exchange for a Global
Note.
(vii) Each
Holder agrees to provide indemnity reasonably satisfactory to the Company and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United
States federal or state securities law.
(viii) Neither
the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any
transfers between or among Agent Members or owners of beneficial interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.
Section 2.7
Replacement Notes.
If any mutilated Note is
surrendered to the Trustee, or the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of
any Note, the Company shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company and the
Trustee may charge a Holder for their expenses in replacing a Note.
Every replacement Note shall
be an obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other
Notes duly issued hereunder.
Section 2.8
Outstanding Notes.
The Notes outstanding at
any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in
this Section 2.8 as not outstanding. Except as set forth in Section 2.9, a Note does not cease to be outstanding because the
Company or a Subsidiary of the Company holds the Note.
If a Note is replaced pursuant
to Section 2.7, it ceases to be outstanding except to the extent otherwise required by applicable law.
If the principal amount of
any Note is considered paid under Section 4.1, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other
than the Company or a Subsidiary thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.9
Treasury Notes.
In determining whether the
Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company
or by any Affiliate of the Company shall be considered as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes shown on the Notes Register as being so
owned shall be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Company or an Affiliate of the Company
pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such
Notes passes to such entity.
Section 2.10
Temporary Notes.
Until Certificated Notes
are ready for delivery, the Company may prepare and the Trustee shall, upon receipt of an Authentication Order, authenticate temporary
Notes. Temporary Notes shall be substantially in the form of Certificated Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall execute and the Trustee shall, upon receipt of an Authentication Order,
authenticate Certificated Notes in exchange for temporary Notes.
Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.
Section 2.11
Cancellation.
The Company at any time may
deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder or which the Company may have acquired
in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee upon the receipt of a cancellation request
from the Company signed by an Officer. All Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation
if surrendered to any Person other than the Trustee, shall be delivered to the Trustee. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. Subject to Section 2.7, the Company
may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All
cancelled Notes held by the Trustee shall be cancelled and disposed of in accordance with its customary practice, and certification of
their cancellation delivered to the Company upon written request.
Section 2.12
[Reserved].
Section 2.13
CUSIP Number.
The Company in issuing or
otherwise dealing with the Notes may use a “CUSIP” and/or ISIN or other similar number, and if it does so, the Company may
use the CUSIP and/or ISIN or other similar number in notices of redemption or exchange as a convenience to Holders; provided
that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP and/or ISIN or other
similar number printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed
on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP and/or ISIN or other similar number.
Section 2.14
Special Transfer Provisions.
Unless and until a Transfer
Restricted Note is transferred or exchanged pursuant to an exemption under the Securities Act or under an effective registration statement
under the Securities Act the following provisions shall apply:
(a) Transfers
to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted
Note (other than pursuant to Regulation S):
(i) The
Registrar shall register the transfer of a Transfer Restricted Note by a Holder to a QIB if such transfer is being made by a proposed
transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the
Note and (b) a letter substantially in the form set forth in Exhibit B hereto.
(ii) If
the proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the Regulation
S Global Note, upon receipt by the Registrar of (x) the items required by paragraph (i) above and (y) instructions given
in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial
interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and
an appropriate decrease in the principal amount of such Regulation S Global Note.
(b) Transfers
Pursuant to Regulation S. On or after the termination of the Restricted Period (as defined in United States Treasury Regulations Section 1.163
-5(c)(2)(i)(D)(7)), interests in a Global Note bearing the Temporary Regulation S Notes Legend shall be exchangeable for corresponding
interests in a Global Note. Prior to the expiration of the Restricted Period, transfers of beneficial interests in a Global Note bearing
the Temporary Regulation S Notes Legend may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Transfers of
beneficial interests in a Global Note bearing the Temporary Regulation S Notes Legend only may be transferred upon (A) delivery
by a beneficial owner of an interest therein to the Depositary or its nominee (as the case may be) of a written certification in the
form of Exhibit C, and (b) delivery by the transferee of such interest to the Depositary or its nominee (as the case
may be) of a written certification in the form of Exhibit C. After the expiration of the Restricted Period, the Registrar
shall register the transfer of any Regulation S Global Note without requiring any additional certification. The following provisions
shall apply with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant to Regulation S:
(i) The
Registrar shall register any proposed transfer of a Transfer Restricted Note pursuant to Regulation S by a Holder if such transfer is
being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in
the form attached to the Note and (b) a written certificate in the form of Exhibit C hereto.
(ii) If
the proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in a QIB Global
Note, upon receipt by the Registrar of (x) the items required by paragraph (i) above and (y) instructions given in accordance
with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial
interest in the QIB Global Note to be transferred, and the Registrar shall reflect on its books and records the date and an appropriate
decrease in the principal amount of the QIB Global Note.
(c) [Reserved].
(d) [Reserved].
(e) Restricted
Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver
Notes that do not bear the Restricted Notes Legend. Until the Resale Restriction Termination Date, upon the transfer, exchange or replacement
of Notes bearing the Restricted Notes Legend, the Registrar shall deliver only Notes that bear the Restricted Notes Legend unless there
is delivered to the Registrar an Opinion of Counsel reasonably 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. On and after
the Resale Restriction Termination Date, upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, which
transfer, exchange or replacement may be initiated by the Company, the Registrar shall deliver Notes that do not bear the Restricted
Notes Legend. Upon request by any Holder, the Company shall cooperate to have the Restricted Notes Legend removed if the Company has
determined such legend is no longer required. At any time on or after the Resale Restriction Termination Date with respect to a Note,
if such Note is represented by one or more Global Notes that bear the Restricted Notes Legend, the Company shall remove the Restricted
Notes Legend on such Note by:
| (1) | providing written notice to the Trustee
and the Registrar that the Resale Restriction Termination Date has occurred and instructing
the Trustee to remove the Restricted Notes Legend from such Global Notes; |
| (2) | providing written notice to each Holder
of such Global Notes, which notice shall state that the Restricted Notes Legend has been
removed from the applicable Global Note and include the unrestricted CUSIP that will thereafter
apply to such applicable Global Note; |
| (3) | providing written notice to the Trustee
and the Depositary that the CUSIP number for each such Global Note will be changed to an
unrestricted CUSIP number, which unrestricted CUSIP number shall be listed in such notice;
and |
| (4) | complying with any Applicable Procedures
for legend removal. |
(f) General.
By its acceptance of any Note bearing the Restricted Notes Legend, each Holder of such a Note acknowledges the applicable restrictions
on transfer of such Note set forth in this Indenture and in the Restricted Notes Legend and agrees that it shall transfer such Note only
as provided herein and therein.
Section 2.15
Issuance of Additional Notes.
The Company shall be entitled
to issue Additional Notes under this Indenture that shall have identical terms as the Initial Notes, other than with respect to the date
of issuance, issue price, accreted value, CUSIP or ISIN numbers, first interest payment date and amount of interest payable on the first
interest payment date applicable thereto, as applicable; provided that such issuance is not otherwise prohibited by the terms
of this Indenture, including Section 4.9 and Section 4.12. All Notes issued under this Indenture (including Additional Notes)
shall be treated as a single class for all purposes under this Indenture including for purposes of any vote, consent, waiver or other
act of Holders; provided, however, that if any such Additional Notes are not fungible with other Notes issued hereunder for
federal income tax purposes, then such additional Notes shall have a separate CUSIP number.
With respect to any Additional
Notes, the Company shall set forth in an Officer’s Certificate, a copy of which shall be delivered to the Trustee, the following
information:
| (1) | the aggregate principal amount of such
Additional Notes to be authenticated and delivered pursuant to this Indenture; and |
| (2) | the issue price, the issue date, the CUSIP
number of such Additional Notes, the first interest payment date and the amount of interest
payable on such first interest payment date applicable thereto and the date from which interest
shall accrue. |
Article III
REDEMPTION
AND PREPAYMENT
Section 3.1
Notices to Trustee.
If the Company elects to
redeem Notes pursuant to Section 3.7, it shall furnish to the Trustee, at least fifteen (15) days but not more than sixty (60) days
(or such shorter period as is acceptable to the Trustee) before a date fixed for redemption (the “redemption date”),
an Officer’s Certificate setting forth (i) the Section of this Indenture pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the Redemption Price.
Section 3.2
Selection of Notes to Be Redeemed.
If less than all of the Notes
are to be redeemed at any time pursuant to Section 3.7, the Trustee shall select the Notes (or portions thereof) on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate (subject to the Depositary’s procedures as applicable);
provided that no Notes of $2,000 principal amount or less shall be redeemed in part. The Trustee shall make the selection from
the Notes outstanding and not previously called for redemption and shall promptly notify the Company in writing of the Notes selected
for redemption. The Trustee may select for redemption portions (equal to $2,000 or integral multiples of $1,000 in excess thereof) of
Notes that have denominations larger than $2,000.
Section 3.3
Notice of Redemption.
At least fifteen (15) days
but not more than sixty (60) days before a redemption date, the Company shall mail or cause to be mailed by first class mail (or, deliver
electronically if held by DTC or in accordance with DTC’s applicable procedures), a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address and for the Notes registered in the name of the Depositary, in accordance with the Depositary’s
applicable procedures.
The notice shall identify
the Notes to be redeemed and shall state:
| (3) | if any Note is being redeemed in part,
the portion of the principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Note, and in the case of physical Notes, new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon cancellation of the
original Note; |
| (4) | the name, telephone number and address
of the Paying Agent; |
| (5) | that Notes called for redemption must
be surrendered to the Paying Agent to collect the Redemption Price; |
| (6) | that, unless the Company defaults in making
such redemption payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date; |
| (7) | the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for redemption are being redeemed;
and |
| (8) | that no representation is made as to the
correctness or accuracy of the CUSIP and/or ISIN or other similar number, if any, listed
in such notice or printed on the Notes. |
At the Company’s written request, the Trustee
shall give the notice of redemption in the Company’s name and at the Company’s expense; provided, however,
that the Company shall have delivered to the Trustee at least twenty (20) days prior to the redemption date (or such shorter period as
is acceptable to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information
to be stated in the notices as provided in the preceding paragraph. The notice sent in the manner herein provided shall be conclusively
presumed to have been duly given whether or not a Holder receives such notice. In any case, failure to give such notice by mail (or electronically
if held by DTC) or any defect in the notice to the Holder of any Note shall not affect the validity of the proceeding for the redemption
of any other Note.
Notwithstanding any of the
foregoing, notices of redemption may be sent more than sixty (60) days prior to a redemption date if the notice is issued in connection
with a satisfaction and discharge of this Indenture.
Section 3.4
Effect of Notice of Redemption.
Once notice of redemption
is mailed in accordance with Section 3.3, subject to any conditions, Notes called for redemption become irrevocably due and payable
on the redemption date at the Redemption Price. On and after the redemption date, interest shall cease to accrue on Notes or portions
thereof called for redemption, provided that the Company has delivered the requisite funds to the Trustee or the Paying Agent.
Section 3.5
Deposit of Redemption Price.
On or before 11:00 a.m. (New
York City time) on each redemption date the Company shall deposit with the Trustee or with the Paying Agent (other than the Company or
a Subsidiary thereof) money sufficient to pay the Redemption Price (including any applicable premium) of and accrued and unpaid interest,
if any, for all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price (including any applicable
premium) of, and accrued and unpaid interest, if any, on, all Notes to be redeemed.
Section 3.6
Notes Redeemed in Part.
In the case of Certificated
Notes, upon surrender and cancellation of a Note that is redeemed in part, the Company shall execute and, upon receipt of an Authentication
Order, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.7
Optional Redemption.
(a) Optional
Redemption on or After September 15, 2024. At any time and from time to time on and after September 15, 2024, the Company,
at its option, may redeem any outstanding Notes, in whole or in part, upon not less than fifteen (15) nor more than sixty (60) days’
prior written notice to Holders and not less than twenty (20) days’ prior written notice to the Trustee (or such shorter timeline
as the Trustee may agree), at the redemption prices (expressed as percentages of the principal amount of the Notes to be redeemed) set
forth below, plus accrued and unpaid interest, if any, to but not including the applicable redemption date (subject to the right of Holders
on the relevant record date to receive interest due on an interest payment date falling on or prior to the redemption date), if redeemed
during the 6-month period beginning on the dates set forth below.
| Date |
Redemption Price |
| September 15, 2024 |
102.000% |
| March 15, 2025 and thereafter |
101.000% |
(b) Optional
Redemption at Make-Whole Price. At any time and from time to time prior to September 15, 2024, upon not less than fifteen (15)
nor more than sixty (60) days’ prior written notice to Holders and not less than twenty (20) days’ prior written notice to
the Trustee (or such shorter timeline as the Trustee may agree), the Company, at its option, may redeem the Notes, in whole or in part,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed, plus the Applicable Premium as of,
and accrued and unpaid interest, if any, to but not including the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on an interest payment date falling on or prior to the redemption date).
(c) Notice
of any redemption or any redemption in respect of the Notes may, at the Company’s discretion, be subject to one or more conditions
precedent. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice of redemption
shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the redemption date may be
delayed until such time as any or all such conditions shall be satisfied (or waived), or such redemption may not occur and such notice,
upon written notice to the Trustee, may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived)
by the redemption date as stated in such notice, or by the redemption date as so delayed; provided that in no event shall
such redemption date be delayed to a date later than sixty (60) days after the date on which the original redemption notice was sent.
The Company shall provide notice to the Trustee at least one Business Day prior to the then scheduled redemption date of the delayed
redemption date or the rescinding of the redemption notice. The Company may provide in such notice that payment of the redemption price
and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
(d) Unless
the Company defaults in the payment of the applicable redemption price, interest shall cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.
Section 3.8
Offer to Purchase.
In the event that the Company
shall be required to commence an Offer to Purchase pursuant to an Asset Sale Offer or a Change of Control Offer, the Company shall follow
the procedures specified below.
On the Purchase Date, the
Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary in the case of an Asset Sale
Offer, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Offer to Purchase and not withdrawn; provided,
however, that the authorized denominations of the Notes are maintained. All such Notes delivered in response of an Offer to Purchase
shall be in $2,000 principal amounts or an integral multiple of $1,000 in excess thereof.
On the Purchase Date, the
Company shall purchase the aggregate principal amount of Notes so accepted for payment (the “Offer Amount”). If the
Purchase Date is on or after the interest record date and on or before the related interest payment date, accrued and unpaid interest,
if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional
interest shall be payable to the Holders who tender Notes pursuant to the Offer to Purchase.
On or before 11:00 a.m. (New
York City time) on each Purchase Date, the Company shall deposit with the Trustee or Paying Agent (other than the Company or a Subsidiary
thereof) the aggregate purchase price equal to the Offer Amount, together with accrued and unpaid interest, if any, for all the Notes
accepted for payment (taking into account the provisions of the immediately preceding paragraph). The Trustee or the Paying Agent shall
promptly, following such payment to Holders, return to the Company any money deposited with the Trustee or Paying Agent by the Company
in excess of the amounts necessary to pay the Offer Amount together with accrued and unpaid interest, if any, on the Notes accepted for
payment and not withdrawn (taking into account the provisions of the immediately preceding paragraph). The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later than three (3) Business Days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted
by the Company for purchase, plus any accrued and unpaid interest, if any, on the Notes accepted for payment (taking into account the
provisions of the immediately preceding paragraph), and the Company shall promptly issue a new Note, and the Trustee, upon receipt of
an Authentication Order, shall authenticate and mail or deliver at the expense of the Company such new Note to such Holder, equal in
principal amount to any unpurchased portion of such Holder’s Notes surrendered; provided that each such new Note shall
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Offer to Purchase on or as
soon as reasonably practicable after the Purchase Date.
Other than as specifically
provided in this Section 3.8, any purchase pursuant to this Section 3.8 shall be made pursuant to the provisions of Sections
3.1 through 3.6 hereof.
Section 3.9
[Reserved]
Section 3.10
Mandatory Redemption.
The Company shall not be
required to make mandatory redemption or sinking fund payments with respect to the Notes; provided, however, that under
certain circumstances, the Company may be required to offer to purchase the Notes described under Sections 4.10 and 4.14 hereof. The
Company may at any time and from time to time purchase the Notes in the open market or otherwise.
Article IV
COVENANTS
Section 4.1
Payment of Notes.
The Company shall pay or
cause to be paid through the Paying Agent the principal of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be considered paid for all purposes hereunder on the date the Paying
Agent, if other than the Company or a Subsidiary thereof, holds, as of 11:00 a.m. (New York City time), money deposited by the Company
in immediately available funds and designated for and sufficient to pay all such principal, premium, if any, and interest then due. All
of the funds provided to the Paying Agent must be in U.S. Dollars. The Stated Maturity of the Notes shall be June 15, 2025; provided,
however, that, if any of the Existing Notes remain outstanding on March 15, 2024, then the Stated Maturity of the Notes shall
be March 15, 2024 and each Note shall be repaid on or prior to such date in an amount equal to 100% of the aggregate principal amount
of the Note, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to but not including such date.
Section 4.2
Maintenance of Office or Agency.
The Company shall maintain
an office or agency where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.
The Company may also from
time to time designate one (1) or more other offices or agencies where the Notes may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or agency.
Section 4.3
Reports.
Notwithstanding that the
Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide
the Trustee with such annual and quarterly reports (the “Financial Reports”) and such information, documents and other reports
as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such
information, documents and reports to be so provided at the times specified for the filing of such information, documents and reports
under such Sections.
Notwithstanding the foregoing,
the Company shall not be required to furnish any information required by Rule 3-05, 3-09, 3-10 or 3-16 of Regulation S-X.
The financial statements,
information and other documents required to be provided as described above may be those of (i) the Company or (ii) any direct
or indirect parent of the Company; provided that, if the financial information so delivered relates to such direct or indirect
parent of the Company, and such parent conducts, transacts or engages in any material business or operations other than its direct or
indirect ownership of all of the Equity Interests in, and its management, of the Company, the same is accompanied by a reasonably detailed
description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating
to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
The Company shall not be
required to provide the Trustee with any such information, documents or reports that are filed with the SEC and the Trustee shall have
no responsibility whatsoever to determine if such reports and information have been filed with the SEC or to monitor the Company’s
filings.
Notwithstanding anything
herein to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of
Section 6.1(5) until 120 days after the date any report hereunder is due.
In addition, the Company
or any direct or indirect parent of the Company shall:
(1) hold a
quarterly conference call to discuss the information contained in the Financial Reports not later than ten (10) Business Days from
the time the Company furnishes the Financial Reports to the Trustee; and
(2) no fewer
than two (2) Business Days prior to the date of the conference call required to be held in accordance with clause (1) above,
issue a press release to an internationally recognized wire service announcing the time and date of such conference call and either including
all information necessary to access the call or directing the holders or beneficial owners of, and prospective investors in, the notes
and securities analysts and market makers to contact an individual at the Company or any direct or indirect parent of the Company (for
whom contact information shall be provided in such press release) to obtain the Financial Reports and information on how to access such
conference call.
Any such reports delivered
or filed by the Company with the Trustee shall be considered for informational purposes only and the Trustee’s receipt of such
reports shall not constitute notice or actual knowledge of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on an Officer’s Certificate). The Trustee shall have no obligation to determine if and when the Company’s statements or reports
are publicly available and accessible electronically.
Section 4.4
Compliance Certificate.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year, an Officer’s Certificate stating, as to each such Officer signing
such certificate, that, to his or her knowledge, each of the Company and the Guarantors is not in default as of the end of such fiscal
year in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action
the Company is taking or proposes to take with respect thereto) and that, to his or her knowledge, no event has occurred and remains
in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
The Company shall, so long
as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer of the Company becoming aware of any Default
or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking
or proposes to take with respect thereto.
Section 4.5
Taxes.
The Company shall pay, and
shall cause each of its Subsidiaries to pay, prior to delinquency all material taxes, assessments and governmental levies, except such
as are contested in good faith and by appropriate negotiations and proceedings and with respect to which appropriate reserves have been
taken in accordance with GAAP or where the failure to effect such payment is not adverse in any material respect to the Holders.
Section 4.6
Stay, Extension and Usury Laws.
The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 4.7
Limitation on Restricted Payments
The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment unless, at the time of such Restricted Payment:
(a) no
Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) after
giving effect to such Restricted Payment on a Pro Forma Basis, the Company could Incur at least $1.00 of additional Debt (other than
Permitted Debt) pursuant to the provisions described in the first paragraph under Section 4.9; and
(c) such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries
after the Original Issue Date (excluding Restricted Payments permitted by clauses (ii) through (xii) and (xiv) through
(xvi) of the next succeeding paragraph), shall not exceed the sum (without duplication) of:
(1) 50%
of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Company accrued
on a cumulative basis during the period (taken as one accounting period) from and including the first day of the first full fiscal quarter
commencing after the Original Issue Date and ending on the last day of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted Payment, plus
(2) 100%
of the aggregate net proceeds (including the Fair Market Value of property other than cash) received by the Company subsequent to the
Original Issue Date either (i) as a contribution to its common equity capital or (ii) from the issuance or sale (other than
to a Restricted Subsidiary) of its Equity Interests (other than Disqualified Stock); provided that (x) this shall apply
only to the extent such net proceeds have not been used to make any Restricted Payments pursuant to clauses (ii) and (iii)(y) of
the next succeeding paragraph and (y) such proceeds shall not include any Available Excluded Contribution Amount that has been used
to make a Restricted Payment, plus
(3) the
amount equal to the sum of (x) the net reduction in Investments (other than Permitted Investments) made by the Company or any Restricted
Subsidiary, subsequent to the Original Issue Date, in any Person, resulting from payments of interest on Debt, dividends, repayments
of loans or advances, repurchases, repayments or redemptions of such Investments by such Person; proceeds (including the Fair Market
Value of property other than cash) representing the return of capital; and proceeds (including the Fair Market Value of property
other than cash) received upon the sale or other disposition of such Investments and (y) in the event that any Unrestricted Subsidiary
is re-designated as a Restricted Subsidiary, the portion (proportionate to the Company’s or any Restricted Subsidiary’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is re-designated as a Restricted Subsidiary; provided, however, that the foregoing sum shall not exceed,
in the case of any such Person, the amount of Investments (other than Permitted Investments) previously made (and treated as a Restricted
Payment) by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, plus
(4) the
amount by which Debt of the Company and its Restricted Subsidiaries is reduced on the Company’s balance sheet upon the conversion
into or exchange (other than by a Restricted Subsidiary of the Company) subsequent to the Original Issue Date for Equity Interests (other
than Disqualified Stock) of the Company or any of its Restricted Subsidiaries (less the amount of any cash, or the Fair Market Value
of any other property, distributed by the Company or any of its Restricted Subsidiaries (other than to the Company or any of its Restricted
Subsidiaries) upon such conversion or exchange).
Notwithstanding the foregoing
provisions, the Company and its Restricted Subsidiaries may take the following actions:
(i) the
payment of any dividend or distribution or the consummation of any redemption within sixty (60) days after the date of declaration of
the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend,
distribution or redemption payment would have complied with the provisions of this Indenture;
(ii) any
Restricted Payment made in exchange for, or with the net proceeds from, the substantially concurrent issuance or sale (other than to
a Restricted Subsidiary of the Company) of Equity Interests (other than Disqualified Stock) of the Company (or any direct or indirect
parent of the Company) or a substantially concurrent equity contribution received by the Company or such Restricted Subsidiary;
(iii) the
making of any payment (including a sinking fund payment) on or with respect to, or the purchase, repurchase, redemption, defeasance,
acquisition or retirement for value of any Debt or Disqualified Stock of the Company or any of its Restricted Subsidiaries that is subordinate
in right of payment to the Notes or to any Note Guarantee (A) with, in exchange for, or with the net proceeds from (x) an Incurrence
of new Debt of the Company or any of its Restricted Subsidiaries, as the case may be, Incurred in accordance with this Indenture
or (y) an issuance or sale of Equity Interests (other than Disqualified Stock) of the Company (or any direct or indirect parent
of the Company), and/or any capital contribution in respect of such Equity Interests (other than any amount that has been added to the
Available Excluded Contribution Amount), and (B) as a result of the conversion of all or any portion of such Debt or Disqualified
Stock into Equity Interests of the Company (or any direct or indirect parent of the Company) (other than Disqualified Stock of the Company);
(iv) the
purchase, repurchase, redemption, retirement or other acquisition for value of Equity Interests in the Company or any direct or indirect
parent of the Company held by current or former officers, directors, employees or consultants (or their respective permitted transferees,
estates or beneficiaries under their estates) of any such parent, the Company or any of its Restricted Subsidiaries; provided that
the aggregate consideration paid for such purchase, repurchase, redemption, retirement or other acquisition for value of such Equity
Interests does not exceed in any calendar year $10.0 million (plus the amount of net cash proceeds received by the Company and
its Restricted Subsidiaries (a) in respect of “key-man” life insurance, (b) from the issuance of Equity Interests
by the Company to members of management of the Company and its Subsidiaries, to the extent that those amounts did not provide the basis
for any previous Restricted Payment and (c) amounts obtained by any direct or indirect parent of the Company (to the extent contributed
to the Company or a Restricted Subsidiary) during the applicable calendar year from the sale of Equity Interests to other officers, directors,
employees or consultants of such parent and its Subsidiaries in connection with any permitted compensation or incentive arrangements)
in any calendar year; provided that any unused amounts in any fiscal year may be carried forward to one or more future periods;
provided, further, that the aggregate amount of repurchases made pursuant to this clause (iv) may not exceed $20.0
million (plus the amount of net cash proceeds received by the Company and its Restricted Subsidiaries (a) in respect of “key-man”
life insurance, (b) from the issuance of Equity Interests by the Company to members of management of the Company and its Subsidiaries,
to the extent that those amounts did not provide the basis for any previous Restricted Payment, and (c) amounts obtained by any
direct or indirect parent of the Company (to the extent contributed to the Company or a Restricted Subsidiary) during the applicable
calendar year from the sale of Equity Interests to other officers, directors, employees or consultants of such parent and its Subsidiaries
in connection with any permitted compensation or incentive arrangements) in any calendar year;
(v) repurchases
of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the
extent such Equity Interests represent all or a portion of the exercise price of those stock options, warrants or other convertible or
exchangeable securities or all or a portion of any taxes required to be withheld in connection with such exercise;
(vi) the
prepayment of Debt owed by the Company or any of its Restricted Subsidiaries to the Company or any of its Restricted Subsidiaries, the
Incurrence of which was permitted pursuant to Section 4.9;
(vii) the
declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries issued or Incurred in compliance with Section 4.9 to the extent such dividends are included in the definition of “Consolidated
Fixed Charges”;
(viii) the
declaration of any dividend or distribution by any of the Company’s Restricted Subsidiaries to the holders of its Equity Interests
on a pro rata basis;
(ix) upon
the occurrence of (i) a Change of Control and after the completion of the Offer to Purchase pursuant to Section 4.14 or (ii) an
Asset Sale to the extent that an Offer to Purchase is required to be made in accordance with this Indenture and after the completion
of the Offer to Purchase pursuant to Section 4.10 (including, in each case, the purchase of all Notes validly tendered (and not
withdrawn), any purchase, defeasance, retirement, redemption or other acquisition of Debt that is contractually subordinated in right
of payment to the Notes or any Note Guarantee required under the terms of such Debt as a result of such Change of Control or Asset Sale,
as applicable;
(x) payments
or distributions of Equity Interests or Debt or other securities of an Unrestricted Subsidiary; provided that the assets of such
Unrestricted Subsidiary do not consist primarily of cash or Cash Equivalents;
(xi) Restricted
Payments to a direct or indirect parent of the Company in amounts sufficient to permit such parent to pay (or to make a dividend to permit
any direct or indirect parent to pay):
| (A) | income tax obligations in each relevant
jurisdiction, for so long as the Company or such Restricted Subsidiary is a member of the
group filing a consolidated, combined, unitary, affiliated or other similar tax return with
such parent, and only to the extent that such tax liability is directly attributable to the
taxable income of the Company or such Restricted Subsidiary (that are included in such consolidated,
combined, unitary, affiliated or other similar tax return), determined as if the Company
or such Restricted Subsidiary filed a separate consolidated, combined, unitary, affiliated
or other similar tax return as a stand-alone group and will be used to pay (or to make distributions
to allow any direct or indirect parent to pay), promptly, and in any event within forty-five
(45) days of the receipt thereof, the tax liability in each relevant jurisdiction in respect
of such consolidated, combined, unitary, affiliated or other similar returns; |
| (B) | franchise taxes and other fees, taxes and
expenses required to maintain such parent’s corporate existence; and |
| (C) | (i) operating expenses incurred in
the ordinary course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third parties), plus any
reasonable and customary indemnification claims made by directors or officers of the Company
(or any parent thereof) attributable to the ownership or operations of the Company and its
Subsidiaries or (ii) fees and expenses otherwise (1) due and payable by the Company
or any of its Subsidiaries and (2) permitted to be paid by the Company or such Subsidiary
under this Indenture; |
(xii) Restricted
Payments in an amount not to exceed the portion, if any of the Available Excluded Contribution Amount on such date that the Company elects
to apply to this clause (xii);
(xiii) so
long as no Event of Default shall have occurred and be continuing or would occur as a consequence thereof, dividends and other distributions
from the Company to any direct or indirect parent of the Company in an aggregate amount per annum not to exceed 6% of the net cash proceeds
received by or contributed to the Company from a capital contribution or the issuance or offering of its Equity Interests after the Original
Issue Date, other than (x) with respect to Disqualified Stock or (y) to the extent such proceeds constitute Available Excluded
Contribution Amounts the Company has elected to apply to clause (xii) above;
(xiv) [reserved];
(xv) additional
Restricted Payments so long as the Consolidated Total Leverage Ratio for the Company’s most recently ended Four-Quarter Period
for which internal financial statements are available immediately preceding the date on which any such Restricted Payment is made would
have been no greater than 1.50 to 1.00, determined on a Pro Forma Basis; and
(xvi) other
Restricted Payments not in excess of an aggregate amount equal to $50.0 million.
For purposes of this Section 4.7,
if any Investment or Restricted Payment would be permitted pursuant to one or more provisions described above and/or one or more of the
exceptions contained in the definition of “Permitted Investments,” the Company may classify all or any portion of such Investment
or Restricted Payment in any manner that complies with this Section 4.7 and may later reclassify from time to time all or any portion
of such Investment or Restricted Payment so long as the Investment or Restricted Payment (as so reclassified) would be permitted to be
made in reliance on the applicable exception as of the date of such reclassification.
If any Person in which an
Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary in accordance
with this Indenture, all such Investments previously made in such Person shall no longer be counted as Restricted Payments for purposes
of calculating the aggregate amount of Restricted Payments pursuant to clause (c) of the first paragraph under this Section 4.7,
in each case to the extent such Investments would otherwise be so counted.
For
purposes of this Section 4.7, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets
or securities, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if
any, plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment, and the Fair Market Value of any
such non-cash portion shall be determined conclusively by the Board of Directors of the Company acting in good faith.
Section 4.8
Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
The Company shall not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i) pay
dividends or make any other distributions to the Company or any Restricted Subsidiary with respect to its Capital Stock or any other
interest or participation in, or measured by, its profits or pay any Debt owed to the Company or any Restricted Subsidiary (it being
understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating
distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and
the subordination of loans or advances made to the Company or any of its Restricted Subsidiaries to other Debt Incurred by the Company
or any of its Restricted Subsidiaries shall not be deemed a restriction on the ability to pay any Debt or other Obligations);
(ii) make
any loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made
to the Company or any of its Restricted Subsidiaries to other Debt Incurred by the Company or any of its Restricted Subsidiaries shall
not be deemed a restriction on the ability to make loans or advances); or
(iii) sell,
lease or transfer any of its property or assets to the Company or any Restricted Subsidiary (it being understood that such transfers
shall not include any type of transfer described in clause (i) or (ii) above).
However, the preceding restrictions shall not
apply to encumbrances or restrictions existing under or by reason of:
(a) agreements
or instruments in effect or entered into on the Original Issue Date, including agreements or instruments governing Debt outstanding on
the Original Issue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements,
refinancings or extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements, refinancings or extensions are not materially more restrictive, taken as a whole, as determined in good faith
by the Company, with respect to such dividend and other payment restrictions than those contained in the agreements or instruments governing
such Debt on the Original Issue Date;
(b) an
agreement relating to an acquisition of property, so long as the encumbrances or restrictions in any such agreement relate solely to
the property so acquired (and are not or were not created solely in contemplation of or in connection with the acquisition thereof) and
any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof;
provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings
or extensions are not materially more restrictive, taken as a whole, as determined in good faith by the Company, with respect to such
dividend and other payment restrictions than those contained in the agreement prior to such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(c) any
agreement or other instrument of a Person acquired by the Company or any of its Restricted Subsidiaries in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so
acquired, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or
extensions thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements, refinancings or extensions are not materially more restrictive, taken as a whole, as determined in good faith by the Company,
with respect to such dividend and other payment restrictions than those contained in such agreements or other instruments prior to such
amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions;
(d) customary
provisions restricting subletting or assignment of any property or asset that is subject to any lease, contract, or license of the Company
or any of its Restricted Subsidiaries or provisions in agreements that restrict the assignment or transfer of such agreement or any rights
thereunder;
(e) applicable
law, rule, regulation, order, approval, license, permit or similar restriction;
(f) any
restriction on the sale or other disposition of assets or property securing Debt as a result of a Permitted Lien on such assets or property;
(g) the
Note Documents, the ABL Credit Facility or the other Loan Documents (as defined in the ABL Credit Facility,
as in effect on the Original Issue Date), the Existing Notes Documents, and in each case any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements, refinancings or extensions thereof; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements, refinancings or extensions are not materially
more restrictive, taken as a whole, as determined in good faith by the Company, with respect to such dividend and other payment restrictions
than those contained in the Note Documents, the ABL Credit Facility or the other Loan Documents (as defined in the ABL Credit Facility,
as in effect on the Original Issue Date), and the Existing Notes Documents, as the case may be, on the Original Issue Date;
(h) restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(i) customary
provisions limiting the disposition or distribution of assets or property in partnership agreements, limited liability company organizational
materials, stockholder agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements
and other similar agreements, which limitation is applicable only to the assets (including Equity Interests of Subsidiaries) that are
the subject of such agreements;
(j) Liens
permitted to be incurred under this Indenture, including under Section 4.12, that limit the right of the Company or any of its Restricted
Subsidiaries to sell or dispose of the property or assets subject to such Liens;
(k) any
agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending
its sale or other disposition;
(l) customary
arrangements entered into or incurred by and relating exclusively to a Receivables Subsidiary in connection with a Qualified Receivables
Transaction that, in the good faith determination of the Company, is reasonably necessary to effect such Qualified Receivables Transaction;
(m) (i) purchase
money obligations for property acquired in the ordinary course of business and (ii) Capital Lease Obligations permitted under this
Indenture that impose restrictions on the property purchased or leased of the nature described in clause (iii) of the preceding
paragraph of this Section 4.8;
(n) restrictions
or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which
the Company or any Restricted Subsidiary a party entered into in the ordinary course of business;
(o) those
arising in connection with any Hedging Obligations and/or Bank Product Obligations; and
(p) those
arising under other Debt of the Company or any of its Restricted Subsidiaries permitted to be Incurred subsequent to the Original Issue
Date pursuant to Section 4.9; provided that the restrictions contained therein are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions than those contained in this Indenture or would not materially
adversely affect the Company’s ability to make anticipated principal and interest payments on the Notes, in each case, as determined
in good faith by the Company.
Nothing contained in this Section 4.8 shall
prevent the Company or any of its Restricted Subsidiaries from creating, incurring or suffering to exist any Permitted Lien or Permitted
Collateral Lien.
Section 4.9
Limitation on Incurrence of Debt.
The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, however, that
the Company and any Guarantor may Incur Debt (including Acquired Debt) if the Company’s Consolidated Fixed Charge Coverage Ratio
for the Company’s most recently ended Four-Quarter Period for which internal financial statements are available on or immediately
preceding the date on which such additional Debt is Incurred, would have been at least 2.00 to 1.00, calculated on a Pro Forma Basis
(including a pro forma application of the net proceeds therefrom).
Notwithstanding the first
paragraph of this Section 4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
For purposes of determining
compliance with this Section 4.9, (x) Guarantees or obligations with respect to letters of credit supporting Debt otherwise
included in the determination of the amount of Debt shall not be included and (y) in the event that an item of Debt meets the criteria
of more than one of the categories of Permitted Debt and/or would have been permitted to have been Incurred pursuant to the first paragraph
of this Section 4.9, the Company, in its sole discretion, may classify, and from time to time may reclassify, all or any portion
of such item of Debt as being within one or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph
of this Section 4.9; provided that all Debt outstanding under the ABL Credit Facility on the Original Issue Date shall be
treated as incurred on the Original Issue Date under clause (i) of the definition of “Permitted Debt”. Debt permitted
by this Section 4.9 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part
by one such provision and in part by one or more other provisions of this Section 4.9 permitting such Debt.
The accrual of interest and
dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest on any
Debt in the form of additional Debt, the payment of dividends on Equity Interests in the forms of additional shares of Equity Interests
with the same terms, and changes to amounts outstanding in respect of Hedging Obligations solely as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder shall not be deemed to
be an Incurrence of Debt.
For purposes of determining
compliance with any U.S. Dollar-denominated restriction on the Incurrence of Debt, the U.S. Dollar-equivalent principal amount of Debt
denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was
Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt
is Incurred to refinance other Debt 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 Debt does
not exceed the principal amount of such Debt being refinanced (plus interest or premiums, defeasance costs, underwriting discounts and
fees and expenses incurred in connection therewith). Notwithstanding any other provision of this Section 4.9, any increase in the
U.S. Dollar equivalent of outstanding Debt of the Company or any of its Restricted Subsidiaries denominated in a currency other than
U.S. Dollars resulting from fluctuations in the exchange values of currencies shall not be considered to be an Incurrence of Debt for
purposes of this Section 4.9; provided that the amount of Debt of the Company and its Restricted Subsidiaries outstanding
at any time for purposes of covenant compliance shall be the U.S. Dollar equivalent of all such Debt of the Company and its Restricted
Subsidiaries outstanding at such time.
In the event an item of Debt
(or any portion thereof) is Incurred as Permitted Debt (other than Permitted Debt pursuant to clause (xv) of the definition thereof)
on the same date that an item of Debt is Incurred under the first paragraph of this Section 4.9, then the Consolidated Fixed Charge
Coverage Ratio shall be calculated with respect to such Incurrence under the first paragraph of this Section 4.9 without regard
to any Incurrence of such Permitted Debt. Unless the Company elects otherwise, the Incurrence of Debt shall be deemed Incurred first
under the first paragraph of this Section 4.9 to the extent permitted, with the balance Incurred as Permitted Debt.
The Company shall not, and
shall not permit any Guarantor to Incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other
Debt of the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes or the Note Guarantee of
such Guarantor, as the case may be, on substantially identical terms; provided that Debt shall not be considered subordinate
or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured on a junior lien or
priority basis.
Section 4.10
Limitation on Asset Sales.
The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the
Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the
Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2)
at least 75% of the consideration received by the Company or such Restricted Subsidiary, as the case may be, in such Asset Sale is in
the form of cash, Cash Equivalents or Replacement Assets; provided that to the extent the assets disposed of constituted
Collateral, any Replacement Assets received constitute Collateral.
For purposes of this provision,
each of the following shall be deemed to be cash:
(a) any
liabilities (as shown on the most recent consolidated balance sheet of the Company (or any direct or indirect parent of the Company)
or in the notes thereto or, if incurred, increased, or decreased subsequent to the date of such balance sheet, such liabilities that
would have been reflected on such balance sheet or in the notes thereto if such incurrence, increase or decrease had taken place on the
date of such balance sheet, as reasonably determined in good faith by the Company) of the Company or a Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the
transferee (or a third party on behalf of the transferee) of any such assets pursuant to an agreement that releases or indemnifies the
Company or such Restricted Subsidiary (or a third party on behalf of the transferee), as the case may be, from further liability;
(b) any
Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate
Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (b), less the amount
of cash or Cash Equivalents received in connection with a subsequent sale, redemption or payment of, or collected on or with respect
to any such Designated Non-cash Consideration, not to exceed 5.0% of Consolidated Total Assets at the time of receipt of such Designated
Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received
and without giving effect to subsequent changes in value); and
(c) any
securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that
are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of their receipt to the extent
of the cash or Cash Equivalents received in that conversion;
Within 365 days after the receipt of any Net
Cash Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary, as the case may be, may apply (or cause to be
applied) such Net Cash Proceeds at its option:
(1) (x) to
the extent such Net Cash Proceeds constitute proceeds from the sale of Collateral, to repay First Lien Obligations, or (y) to the
extent such Net Cash Proceeds constitute proceeds from the sale of assets not constituting Collateral, to repay any Debt of a Restricted
Subsidiary that is not a Guarantor;
(2) to
prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) the Notes and any other Second Lien Obligations on a
pro rata basis; provided that any repayment, prepayment or purchase of (or offer to repay, prepay or purchase) obligations
under the Notes shall be made (x) as provided in Section 3.7, (y) through open-market purchases (to the extent such purchases
are at or above 100% of the principal amount of the Notes purchased, plus accrued and unpaid interest to but excluding the date of purchase)
or (z) by making an Offer to Purchase (in accordance with the procedures set forth below with respect to Excess Proceeds) to all
holders of Notes to purchase their Notes (at 100% of the principal amount of the Notes purchased, plus accrued and unpaid interest to
but excluding the date of purchase);
(3) to
make capital expenditures or expenditures for maintenance, repair or improvement of existing properties and assets; provided
that to the extent such Net Cash Proceeds constitute proceeds from the disposition of Collateral, such properties and assets constitute
Collateral;
(4) to
acquire Replacement Assets; provided that to the extent such Net Cash Proceeds constitute proceeds from the disposition of
Collateral, such Replacement Assets also constitute Collateral; or
(5) any
combination of the foregoing;
or enter into a binding commitment regarding
clauses (3) or (4) above; provided that such binding commitment shall be treated as a permitted application of
Net Cash Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is
consummated and (y) the 180th day following the expiration of the aforementioned 365 day period. If such acquisition or expenditure
is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied such Net Cash Proceeds
pursuant to clauses (1) through (5) of this paragraph on or before such 180th day, such commitment shall be deemed not to have
been a permitted application of Net Cash Proceeds on such 180th day.
Pending the final application
of any such Net Cash Proceeds, the Company or a Restricted Subsidiary may temporarily reduce Debt under Credit Facilities or otherwise
invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
Any Net Cash Proceeds from
Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 shall constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, within thirty days thereof, the Company shall
make an Offer to Purchase to all Holders and all holders of Pari Passu Debt containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, in each case, equal to the maximum principal
amount of Notes and such other Pari Passu Debt that may be purchased out of the Excess Proceeds. The offer price in any such Offer to
Purchase shall be equal to 100% of the principal amount of the Notes purchased, plus accrued and unpaid interest to but excluding the
date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of such an Offer to Purchase, the Company
may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture and such remaining amount shall not be added
to any subsequent Excess Proceeds for any purpose under this Indenture. If the aggregate principal amount of Notes and such other Pari
Passu Debt tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company
shall select such other Pari Passu Debt to be purchased on a pro rata basis as between the Notes and Pari Passu Debt. Upon completion
of each Offer to Purchase, the amount of Excess Proceeds shall be reset at zero. Any such Offer to Purchase shall be conducted in accordance
with the procedures specified in Section 3.8.
To the extent that any portion
of Net Cash Proceeds payable in respect of the Notes is denominated in a currency other than U.S. Dollars, the amount thereof payable
in respect of the Notes shall not exceed the net amount of funds in U.S. Dollars that is actually received by the Company upon converting
such portion into U.S. Dollars.
The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent
that the provisions of any securities laws or regulations conflict with Section 3.8 or this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.8
or this Section 4.10 by virtue of such compliance.
Section 4.11
Limitation on Transactions with Affiliates.
The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from in any transaction or series of related transactions,
or enter into or make or amend, any contract, agreement, loan, advance or guarantee with, or for the benefit of, any Affiliate of the
Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million,
unless:
(i) such
Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those
that could reasonably have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary
with an unaffiliated third party; and
(ii) with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0
million, the Company delivers to the Trustee a resolution adopted by the Board of Directors of the Company approving such Affiliate Transaction
and an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above.
The foregoing limitation does not limit, and
shall not apply to:
(i) Permitted
Investments and/or other Restricted Payments that are permitted by Section 4.7;
(ii) [reserved];
(iii) any
employment or consulting agreement, director’s engagement agreement, employee benefit plan, officer or director indemnification
agreement, severance arrangement, compensation or any similar arrangement entered into by the Company (or any direct or indirect parent
thereof) or any of its Restricted Subsidiaries in the ordinary course of business or approved in good faith by the relevant Board of
Directors and payments pursuant thereto;
(iv) the
payment of reasonable fees, reasonable out of pocket costs, compensation and other benefits (including retirement, health, stock, option,
deferred compensation and other benefit plans), reimbursements and indemnities paid to, or provided on behalf of, or for the benefit
of, former, current or future directors, officers, employees, managers and consultants of any direct or indirect parent of the Company,
the Company or any of its Restricted Subsidiaries to the extent attributable to the ownership or operation of the Company and its Restricted
Subsidiaries;
(v) payments
to any future, current or former employee, director, officer or consultant of Company (any direct or indirect parent thereof) or any
of its Subsidiaries pursuant to a management equity plan or stock option plan or any other management or employee benefit plan or agreement
or any stock subscription or shareholder agreement and any employment agreements, stock option plans and other compensatory arrangements
(and any successor plans thereto) and any health, disability and similar insurance or benefit plans or supplemental executive retirement
benefit plans or arrangements with any such employees, directors, officers or consultants that are, in each case, approved by the Company
in good faith;
(vi) transactions
between or among the Company and one or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary
in connection with such transaction) or between or among one or more Restricted Subsidiaries (including any Person that becomes a Restricted
Subsidiary in connection with such transaction);
(vii) any
transaction with a Person which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns,
directly or indirectly, Equity Interests of or otherwise controls such Person
(viii) the
issuance or sale of Capital Stock or other Equity Interests of any direct or indirect parent of the Company to the management of the
Company, any of its Restricted Subsidiaries (or any direct or indirect parent thereof), or any of their respective subsidiaries pursuant
to employee and severance arrangements in the ordinary course of business, or to any director, officer, employee or consultant (or their
respective estates, investment funds, investment vehicles, spouses or former spouses) of the Company, any of the Company’s subsidiaries
or any direct or indirect parent of the Company and the granting and performing of reasonable and customary registration rights;
(ix) any
agreement, instrument or arrangement as in effect on the Issue Date (including agreement, instrument or arrangement underlying affiliate
transactions described in the Offering Memorandum), and any transactions contemplated thereby and amendments or modifications thereto
or replacements thereof, so long as any such amendment, modification or replacement is not disadvantageous in any material respect to
the Holders, taken as a whole, as compared to the original agreement, instrument or arrangement in effect on the Issue Date;
(x) transactions
as to which the Company or any Restricted Subsidiary delivers to the Trustee a written opinion of an investment banking, accounting,
consulting or appraisal firm of national standing in the United States to the effect that the transaction complies with clause (i) above
or is fair, from a financial point of view or otherwise, to the Company or the Restricted Subsidiary that is a party thereto, as the
case may be;
(xi) any
contribution of capital to the Company or any Restricted Subsidiary otherwise permitted hereunder;
(xii) transactions
with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary
course of business or consistent in all material respects with past practice and which are (x) in the good faith determination of
the Company (including by senior management or the board thereof), fair to the Company and its Restricted Subsidiaries or (y) on
terms that are not less favorable, taken as a whole, to the Company or such Restricted Subsidiary, than those that might reasonably have
been obtained in a comparable arm’s-length transaction with an unaffiliated third party;
(xiii) sales
or other dispositions of accounts receivable and related assets and interests therein of the type specified in the definition of “Qualified
Receivables Transaction” to a Receivables Subsidiary in a Qualified Receivables Transaction and Permitted Investments and other
transactions in connection with a Qualified Receivables Transaction and any other Standard Securitization Undertakings in connection
with a Qualified Receivables Transaction;
(xiv) the
entering into of a tax sharing agreement, or payments pursuant thereto, between the Company and one or more Restricted Subsidiaries,
on the one hand, and any other Person (including any direct or indirect parent of the Company) with which the Company and/or such Restricted
Subsidiaries files a consolidated tax return; provided that any such tax sharing agreement, or payment pursuant thereto, shall
be on customary terms to the extent attributable to the ownership or operation of the Company and the relevant Restricted Subsidiaries;
(xv) any
merger, amalgamation, arrangement, consolidation or other reorganization of the Company with an Affiliate solely for the purpose and
with the sole effect of forming a holding company or reincorporating the Company in a new jurisdiction;
(xvi) transactions
between the Company or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors
is also a director of the Company or any of its Restricted Subsidiaries; provided that such director abstains from voting as a
director of the Company or such Restricted Subsidiary, as the case may be, on any matter involving such other Person;
(xvii) any
issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and any agreement that grants registration
and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Company (and the performance
of such agreements);
(xviii) (A) investments
by Affiliates (other than any direct or indirect parent of the Company or any such parent’s subsidiaries) in securities of the
Company or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred in connection therewith) so
long as (x) the investment is being offered generally to investors on the same or more favorable terms and (y) the investment
constitutes less than 10.0% of the proposed issue amount of such class of securities, and (B) transactions with Affiliates solely
in their capacity as holders of Debt or Equity Interests of the Company or any of the Restricted Subsidiaries, so long as such transaction
is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all
other holders of such class generally;
(xix) any
agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated,
arranged or consolidated with the Company or any of its Restricted Subsidiaries; provided that such agreement was not entered
into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation and any amendment thereto (so long as any
such amendment is not materially more disadvantageous to the Company or such Restricted Subsidiary in the good faith judgment of Senior
Management or the Board of Directors of the Company, when taken as a whole, as compared to the applicable agreement as in effect on the
date of such acquisition, merger, amalgamation, arrangement or consolidation);
(xx) any
lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, in the ordinary
course of business, and any lease, sublease, license or sublicense of intellectual property in the ordinary course of business;
(xxi) pledges
of Equity Interests of Unrestricted Subsidiaries to support the Debt of any such Unrestricted Subsidiary; and
(xxii) payments
to and from and transactions with any joint venture in the ordinary course of business; provided that such joint venture is not
controlled by an Affiliate (other than a Restricted Subsidiary) of the Company.
Section 4.12
Limitation on Liens.
The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur or assume any Lien of any kind securing
Debt on the Collateral, except Permitted Collateral Liens.
For purposes of determining
compliance with this Section 4.12, in the event that a proposed Lien (or a portion thereof) meets the criteria of more than one
of the categories described in one or more of the clauses contained in the definition of “Permitted Liens,” the Company shall
be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Lien (or
any portion thereof) among one or more clauses contained in the definition of “Permitted Liens” in a manner that otherwise
complies with this Section 4.12. In the event a Lien (or any portion thereof) is Incurred under clause (mm) of the definition of
“Permitted Liens” on the same date that a Lien is incurred under a different clause of the definition of “Permitted
Liens”, then the Consolidated Secured Debt Ratio shall be calculated with respect to such Incurrence under such clause (mm) without
regarding to any Incurrence of such other Permitted Lien.
Section 4.13
Limitation on Sale and Leaseback Transactions.
The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction unless:
(i) the
consideration received in such Sale and Leaseback Transaction is at least equal to the Fair Market Value of the property that is the
subject of such Sale and Leaseback Transaction, and in the case of any Sale and Leaseback Transaction with a Fair Market Value equal
to or greater than $10.0 million, such Fair Market Value is certified to the Trustee in an Officer’s Certificate;
(ii) the
Company or the Restricted Subsidiary could have incurred an aggregate principal amount of such Debt in an amount equal to the Attributable
Debt relating to such Sale and Leaseback Transaction under Section 4.9; and
(iii) if
such Sale and Leaseback Transaction constitutes an Asset Sale, the transfer of assets in such Sale and Leaseback Transaction is permitted
by, and the Company or such Restricted Subsidiary, as the case may be, applies the Net Cash Proceeds of such transaction in compliance
with Section 4.10.
Section 4.14
Offer to Purchase upon a Change of Control.
Upon the occurrence of a
Change of Control, the Company shall be required to make an Offer to Purchase (a “Change of Control Offer”) all or
any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price (the
“Purchase Price”) in cash equal to 101% of the principal amount of the Notes tendered, plus accrued and unpaid interest
to but not including the Purchase Date (subject to the right of Holders on the relevant record date to receive interest due on an interest
payment date falling on or prior to the Purchase Date). For purposes of the foregoing, a Change of Control Offer shall be deemed to have
been made if (i) within thirty (30) days following a Change of Control, the Company commences an Offer to Purchase all outstanding
Notes at the Purchase Price and (ii) all Notes validly tendered (and not withdrawn) pursuant to the Offer to Purchase are purchased
in accordance with the terms of such Offer to Purchase. Any Change of Control Offer shall be conducted in accordance with the procedures
specified in Section 3.8.
The Company shall not be
required to make a Change of Control Offer if (i) a third party makes such Offer to Purchase in the manner, at the times and otherwise
in compliance with the requirements set forth in this Section 4.14 applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered (and not withdrawn) under such Change of Control Offer or (ii) a notice of redemption for all
of the outstanding Notes has been given pursuant to Section 3.7. An Offer to Purchase may be made in advance of a Change of Control(an
“Advanced Offer to Purchase”), conditional upon such Change of Control, if a definitive agreement is in place for
the Change of Control at the time such Advanced Offer to Purchase is made. The Company shall not be required to make another Change of
Control Offer if an Advanced Offer to Purchase has already been made.
The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
those laws and regulations are applicable in connection with any Offer to Purchase described above. To the extent that the provisions
of any securities laws or regulations conflict with Section 3.8 or this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.8 or this Section 4.14
by virtue of such compliance.
In the event that Holders
of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer (or Advanced Offer to
Purchase) and the Company purchases all of the Notes held by such Holders, within 90 days of such purchase, the Company shall have the
right, upon not less than fifteen (15) days’ nor more than sixty (60) days’ prior notice, to redeem all of the Notes that
remain outstanding following such purchase at the Purchase Price plus, to the extent not included in the Purchase Price, accrued and
unpaid interest on the Notes to the date of redemption (subject to the right of Holders of record on the relevant record date to receive
interest due on an interest payment date that is on or prior to the redemption date).
Section 4.15
Maintenance of Properties, Corporate Existence and Insurance.
Subject to and in compliance
with the provisions of Article X and the provisions of the applicable Security Documents, all property (including equipment) material
to, and used or useful in the conduct of the business of, the Company and its Restricted Subsidiaries, taken as whole, shall be maintained
and kept in good operating condition and working order (ordinary wear and tear and casualty loss excepted), and the Company and its Restricted
Subsidiaries shall make any repairs, replacements and improvements thereto as they determine to be reasonable and prudent; provided
that the Company. and its Restricted Subsidiaries shall not be obligated to comply with the foregoing provisions of this Section 4.15
to the extent that the failure to do so would not result in a material adverse effect on the ability of the Company and its Restricted
Subsidiaries to satisfy their obligations under the Notes, the Guarantees, this Indenture and the Security Documents.
The Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership,
limited liability company or other existence of each of its Restricted Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any such Subsidiary and the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided that (a) this Section 4.15 shall
not apply to any transaction or series of transactions to which Article V is applicable and (b) the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors of the Company shall determine, in its discretion, that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries and that the loss thereof would not result in a material adverse effect
on the ability of the Company and its Restricted Subsidiaries to satisfy their obligations under the Notes, the Guarantees, this Indenture
and the Security Documents.
The Company shall provide
or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self-insurance) on its and its
Subsidiaries business and the Collateral, with recognized, financially sound insurers or with the government of the United States of
America, or an agency or instrumentality thereof, in such amounts, with such deductibles and by such methods as are determined by the
Company in good faith to be reasonable and prudent, taking into account the risks that are usually insured against in the same general
area by companies engaged in the same business or a business that the Company deems reasonably similar (in each case, after giving effect
to any self-insurance determined by the Company to be reasonable and prudent).
Section 4.16
Limited Condition Transactions.
When
calculating the availability under any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection
with any Limited Condition Transaction, any actions or transactions related thereto (including, without limitation, acquisitions, Investments,
the Incurrence of Debt and the use of proceeds therefrom, the incurrence of Liens, Restricted Payments and the designation of any Restricted
Subsidiary or Unrestricted Subsidiary), and determining compliance with Defaults and Events of Default, in each case, at the option of
the Company (the Company’s election to exercise such option, an “LCT Election”), the date of determination for
availability under any such basket or ratio and whether any such action or transaction is permitted (or any requirement or condition
therefor is complied with or satisfied (including, without limitation, as to the absence of any continuing Default or Event of Default))
under this Indenture shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into
(or, if applicable, the date of delivery of an irrevocable notice or similar event) (the “LCT Test Date”), and if,
after giving effect to the Limited Condition Transaction and any actions or transactions related thereto (including, without limitation,
acquisitions, Investments, the Incurrence of Debt and the use of proceeds therefrom, the incurrence of Liens and Restricted Payments)
on a Pro Forma Basis, the Company or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate
such transactions on the relevant LCT Test Date in compliance with such ratio, test or basket (and any related requirements and conditions),
such ratio, test or basket (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for
all purposes under this Indenture (in the case of Debt, for example, whether such Debt is committed, issued or otherwise Incurred at
the LCT Test Date or at any time thereafter); provided, that compliance with such ratios, tests or baskets (and any related requirements
and conditions) shall not be determined or tested at any time after the applicable LCT Test Date for such Limited Condition Transaction
or any actions or transactions related thereto (including, without limitation, acquisitions, Investments, the Incurrence of Debt
and the use of proceeds therefrom, the incurrence of Liens, Restricted Payments and the designation of any Restricted Subsidiary or Unrestricted
Subsidiary).
For
the avoidance of doubt, if the Company has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance
was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to
have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated
EBITDA or Consolidated Total Assets of the Company or the Person subject to such Limited Condition Transaction, such baskets, tests or
ratios shall not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations; (2) if any
related requirements and conditions (including as to the absence of any continuing Default or Event of Default) for which compliance
or satisfaction was determined or tested as of the LCT Test Date would at any time after the LCT Test Date not have been complied with
or satisfied (including due to the occurrence or continuation of an Default or Event of Default), such requirements and conditions shall
not be deemed to have been failed to be complied with or satisfied (and such Default or Event of Default shall be deemed not to have
occurred or be continuing); and (3) in calculating the availability under any ratio, test or basket in connection with any action
or transaction unrelated to such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date
on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, purchase
or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes or such irrevocable
notice is rescinded, as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall
be determined or tested giving pro forma effect to such Limited Condition Transaction.
Section 4.17
Additional Note Guarantees.
After the Issue Date, the
Company shall cause each existing and subsequently acquired or organized direct or indirect wholly-owned U.S. organized Restricted Subsidiary
that guarantees the Debt under the ABL Credit Facility, the Existing Notes or any other Debt for borrowed money in a principal amount
in excess of $25.0 million to Guarantee the Notes (collectively, the “Guarantors”).
Any Restricted Subsidiary
that becomes a Guarantor after the Issue Date shall execute (i) a supplemental indenture, in accordance with the terms of this Indenture,
pursuant to which such Restricted Subsidiary shall unconditionally Guarantee, on a senior secured basis, all of the Company’s Obligations
under the Notes upon the terms set forth in this Indenture and (ii) a joinder agreement to the applicable Security Documents defining
the terms of the security interests that secure payment and performance when due of the Notes, and take all actions required by the Security
Documents to cause the Note Liens created thereunder to be duly perfected in accordance with applicable law (subject to Section 4.19
hereof), including the execution and delivery of other applicable Security Documents and the filing of financing statements in the jurisdictions
of incorporation or formation of the Company and the Guarantors.
Section 4.18
Limitation on Creation of Unrestricted Subsidiaries.
The Company may designate
any of its Subsidiaries to be an “Unrestricted Subsidiary” as provided below, in which event such Subsidiary and each other
Person that is a Subsidiary of such Subsidiary shall be deemed to be an Unrestricted Subsidiary.
“Unrestricted
Subsidiary” means:
| (i) | any
Subsidiary of the Company designated as such by the Board of Directors of the Company after
the Issue Date as set forth below; and |
| (ii) | any
Subsidiary of an Unrestricted Subsidiary. |
After the Issue Date, the
Company may designate any Subsidiary of the Company to be an Unrestricted Subsidiary unless after giving effect to such designation,
such Subsidiary would own any Equity Interests of, or would own or hold any Lien on any property of, any other Restricted Subsidiary
of the Company; provided that either:
(x) the
Subsidiary to be so designated has total assets (determined on a consolidated basis in accordance with GAAP) of $100,000 or less;
or
(y) the
Company could make a Restricted Payment or Permitted Investment in an amount equal to the greater of the Fair Market Value or book value
of such Subsidiary pursuant to Section 4.7 and such amount is thereafter treated as a Restricted Payment or Permitted Investment,
as applicable, for the purpose of calculating the amount available for Restricted Payments or Permitted Investments thereunder.
An Unrestricted Subsidiary may be designated
as a Restricted Subsidiary if (i) all the Debt of such Unrestricted Subsidiary could be Incurred under Section 4.9 and (ii) all
the Liens on the property and assets of such Unrestricted Subsidiary could be incurred under Section 4.12.
Section 4.19
Creation and Perfection of Certain Security Interests After the Issue Date.
The Company and the Guarantors
shall use their respective commercially reasonable efforts to do or cause to be done all acts and things that would be required, including
obtaining any required consents from third parties, to have all security interests in the Collateral duly created and enforceable and
perfected, to the extent required by the Security Documents, in each case, promptly following the Issue Date, but in no event later than
120 days thereafter. Failure to obtain such consents and create and perfect a security interest in such Collateral within such period
constitutes an Event of Default if and to the extent provided under clause (9) under Section 6.1. Notwithstanding the foregoing,
if after using commercially reasonable efforts such a security interest in an asset could not be created or perfected because a third
party consent had not been obtained or local law did not permit a security interest to more than one secured party, the Company shall
not be required to create or perfect such security interest. For the avoidance of doubt, references in this paragraph to Collateral do
not include Excluded Assets. Neither the Trustee nor the Collateral Agent on behalf of the holders of the Notes has any duty or responsibility
to see to or monitor the performance of the Company and the Guarantors with regard to these matters.
Section 4.20
Further Assurances.
The Company and each of the
Guarantors shall execute and deliver such additional instruments, certificates or documents, and take all such further actions as may
be reasonably required from time to time in order to:
| (1) | carry out more effectively the purposes
of the Security Documents; |
| (2) | create, grant, perfect and maintain the
validity, effectiveness and priority (subject to Permitted Collateral Liens) of any of the
Security Documents and the Liens created, or intended to be created, by the Security Documents;
and |
| (3) | ensure the protection and enforcement
of any of the rights granted or intended to be granted to the Collateral Agent or Trustee
under any other instrument executed in connection therewith |
Section 4.21
Suspension of Covenants.
(a) The
covenants contained in Section 4.7; Section 4.8; Section 4.9; Section 4.10; Section 4.11;
clauses (ii) and (iii) of Section 4.13 and clause (vii) of Section 5.1 (collectively, the “Suspended
Covenants”) shall not apply during any period during which the Notes have an Investment Grade Status (a “Suspension
Period”).
(b) Additionally,
during any Suspension Period, the Company shall no longer be permitted to designate any Restricted Subsidiary as an Unrestricted Subsidiary.
(c) In
the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result
of the foregoing, and on any subsequent date (the “ Reversion Date”) the Notes cease to have Investment Grade Status,
then the Suspended Covenants shall apply with respect to events occurring following the Reversion Date (unless and until the Notes subsequently
attain an Investment Grade Status, in which case the Suspended Covenants shall again be suspended for such time that the Notes maintain
an Investment Grade Status); provided, however, that no Default, Event of Default or breach of any kind shall be deemed
to exist under any of the Note Documents with respect to the Suspended Covenants, and none of the Company or any of its Subsidiaries
shall bear any liability for any actions taken or events occurring during a Suspension Period and before any related Reversion Date,
or any actions taken at any time pursuant to any contractual obligation or binding commitment arising prior to such Reversion Date, regardless
of whether those actions or events would have been permitted if the applicable Suspended Covenant had remained in effect during such
period.
On each Reversion Date, all
Debt Incurred during the Suspension Period prior to such Reversion Date shall be deemed to be Debt existing on the Original Issue Date.
For purposes of calculating the amount available to be made as Restricted Payments under clause (c) of the first paragraph of Section 4.7
on or after the Reversion Date, such calculations shall be made as though such covenant had been in effect during the entire period of
time after the Original Issue Date (including the Suspension Period).
Restricted Payments made
during the Suspension Period not otherwise permitted pursuant to any of clauses (ii) through (xvi) under the second paragraph
of Section 4.7 shall reduce the amount available to be made as Restricted Payments under clause (c) of the first paragraph
of Section 4.7; provided that the amount available to be made as Restricted Payments on the Reversion Date shall not
be reduced to below zero solely as a result of such Restricted Payments. In addition, for purposes of the other Suspended Covenants all
agreements entered into and all actions taken during the Suspension Period, including the Incurrence of Debt shall be deemed to have
been taken or to have existed prior to the Original Issue Date.
The Company, in an Officer’s
Certificate, shall provide the Trustee notice of any Suspension Period or Reversion Date. The Trustee shall have no obligation to (i) independently
determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension
Period on the Company’s future compliance with its covenants or (iii) notify the Holders of a Suspension Period or Reversion
Date.
Article V
SUCCESSORS
Section 5.1
Consolidation, Amalgamation, Merger, Conveyance, Transfer or Lease.
The Company shall not, in
any transaction or series of related transactions (i) consolidate or amalgamate with or merge with or into any other Person (other
than (1) a consolidation, or merger or amalgamation, of a Restricted Subsidiary into the Company in which the Company is the continuing
or surviving Person, or (2) the consolidation, or merger or amalgamation, of a Restricted Subsidiary into or with another Restricted
Subsidiary or another Person that as a result of such transaction or series of transactions becomes, consolidates with, or amalgamates
or merges into a Restricted Subsidiary) or (ii) sell, assign, convey, transfer, lease or otherwise dispose of all or substantially
all of the property and assets of, the Company and its Restricted Subsidiaries, taken as a whole, to any other Person, unless:
(i) either:
(a) if
the transaction or series of transactions is a consolidation or amalgamation of the Company with, or a merger of the Company with or
into, any other Person, the Company shall be the surviving Person of such consolidation, amalgamation or merger; or
(b) if
the transaction or series of transactions is a consolidation or amalgamation of the Company with, or a merger of the Company with or
into, any other Person, or involves the sale, assignment, conveyance, lease, disposal or other transfer of all or substantially all of
the assets or properties of the Company, the Person formed by such consolidation or amalgamation or into which the Company is merged,
or to which all or substantially all of such properties and assets are sold, assigned, conveyed, transferred, leased or otherwise disposed
of (such Person, the “Surviving Entity”) shall be a corporation, partnership, limited liability company or similar
entity organized and existing under the laws of the United States, any political subdivision thereof or any state thereof or the District
of Columbia, and such Person shall expressly assume by (i) supplemental indenture, all of the Obligations of the Company under this
Indenture and (ii) amendment, supplement or other instrument, all of the Obligations of the Company under the Security Documents,
and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as
may be required by applicable law to perfect or continue the perfection of the Note Lien created under the Security Documents on the
Collateral owned by or transferred to the Surviving Entity;
(ii) immediately
after giving effect to such transaction or series of related transactions on a Pro Forma Basis (including any Debt Incurred in connection
with or in respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing
and have resulted therefrom;
(iii) the
Company or the Surviving Entity, as applicable, causes such amendments, supplements or other instruments to be executed, delivered, filed
and recorded, as applicable, in such jurisdictions as may be required by applicable law to preserve and protect the Note Lien of the
Security Documents on the Collateral owned by or transferred to the Company or the Surviving Entity, as applicable;
(iv) the
Collateral owned by or transferred to the Company or the Surviving Entity, as applicable, shall (a) continue to constitute Collateral
under this Indenture and the Security Documents, (b) be subject to the Note Lien in favor of the Collateral Agent for the benefit
of the Trustee and the Holders, and (c) not be subject to any Lien other than such Liens as are permitted pursuant to the terms
of this Indenture;
(v) after
giving effect to any such transaction or series of transactions on a Pro Forma Basis (including any Debt Incurred or anticipated to be
Incurred in connection with or in respect of such transaction or series of transactions) as if such transaction or series of transactions
had occurred on the first day of the applicable determination period, the Surviving Entity (a) would be permitted to Incur at least
$1.00 of additional Debt (other than Permitted Debt) pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth under the
first paragraph of Section 4.9 or (b) the Consolidated Fixed Charge Coverage Ratio for the Surviving Entity and its Restricted
Subsidiaries would not be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(vi) each
Guarantor, unless it is the Surviving Entity, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to the
Successor Entity’s obligations under this Indenture and the Notes; and
(vii) the
property and assets of each Person which is merged, consolidated or amalgamated with or into the Company to the extent that they are
property or assets of the types which would constitute Collateral of the Company under the Security Documents, shall be treated as after-acquired
property and the Company or the Surviving Entity shall take such action as may be reasonably necessary to cause such property and assets
to be made subject to the Note Lien of the Security Documents in the manner and to the extent required in this Indenture.
The foregoing requirements
shall not apply to any transaction or series of transactions involving the sale, assignment, conveyance, transfer, lease or other disposition
of any properties or assets by any Restricted Subsidiary of the Company to the Company or any Guarantor or by any Subsidiary of the Company
that is not a Material Subsidiary to another Subsidiary of the Company that is not a Material Subsidiary, or the consolidation, amalgamation
or merger of any Restricted Subsidiary of the Company with or into the Company or any Guarantor or of any Subsidiary that is not a Material
Subsidiary with or into another Subsidiary of the Company that is not a Material Subsidiary. Clauses (ii) through (vi) of the
preceding paragraph shall not apply to (a) a merger of the Company with an Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction, (b) a merger transaction among the Company or any direct or indirect parent of the Company or (c) a
merger, consolidation or amalgamation of a Foreign Subsidiary with another Foreign Subsidiary or the sale, assignment, conveyance, transfer,
lease or other disposition of any properties or assets of a Foreign Subsidiary to another Foreign Subsidiary.
In connection with any consolidation,
amalgamation, merger, sale, assignment, conveyance, transfer, lease or other disposition contemplated by the foregoing provisions, the
Company shall deliver, or cause to be delivered, to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each to the
effect that such consolidation, amalgamation, merger, sale, assignment, conveyance, transfer, lease or other disposition complies with
the requirements of this Indenture.
Section 5.2
Successor Person Substituted.
Upon the consummation of
any transaction or series of related transactions that are of the type, and are effected in accordance with the conditions, described
in Section 5.1 and for which there is a Surviving Entity (other than the Company) (i) the Surviving Entity shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under the Note Documents with the same effect as if such
Surviving Entity had originally been named as the Company therein; and (ii) when a Surviving Entity duly assumes all of the obligations
and covenants of the Company pursuant to this Indenture, the Notes and the Note Guarantees, as applicable, the predecessor Person shall
be released from of all of its Obligations and covenants under the Note Documents, except in the case of a lease.
Any restriction in this Indenture
applicable to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term (including,
without limitation, the restrictions set forth in Sections 4.10 and 5.1) shall be deemed to apply to a division of or by a limited liability
company pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable
law), or an allocation of assets arising out of or relating to any such division, as if it were a merger, transfer, consolidation, amalgamation,
consolidation, assignment, sale or transfer, or similar term, as applicable.
Article VI
DEFAULTS
AND REMEDIES
Section 6.1
Events of Default.
Each of the following constitutes an “Event
of Default”:
| (1) | default in the payment when due of the
principal of (or premium, if any, on) any Note (whether at Stated Maturity, upon redemption
or otherwise); |
| (2) | default in the payment of any interest
upon any Note when it becomes due and payable, and continuance of such default for a period
of thirty (30) days; |
| (3) | failure to perform or comply with Section 5.1; |
| (4) | except as permitted by this Indenture,
the Note Guarantee of any Subsidiary of the Company that is a Significant Subsidiary (or
any group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary), shall be held in a judicial proceeding to be unenforceable or invalid, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its
Note Guarantee (other than by reason of a release of such Guarantor in accordance with this
Indenture, as applicable); |
| (5) | default in the performance, or breach,
of (i) any covenant or agreement of the Company or any Guarantor in this Indenture (other
than (x) a covenant or agreement a default in whose performance or whose breach is specifically
dealt with in clause (1), (2), (3) or (4) above or (y) Section 4.3),
and continuance of such default or breach for a period of sixty (60) days after written notice
thereof has been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 30% in aggregate principal amount of the outstanding Notes or (ii) Section 4.3
and continuance of such default or breach for a period of 120 days after written notice thereof
has been given to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 30% in aggregate principal amount of the outstanding Notes; |
| (6) | default under any bonds, debentures,
notes or other evidences of Debt for money borrowed (other than the Notes) by the Company
or any of its Restricted Subsidiaries whether such Debt exists on the Issue Date or shall
thereafter be created, which default (A) is caused by a failure to pay the principal
of such Debt when due and payable after the expiration of any applicable grace period provided
in such Debt (a “Payment Default”) or (B) results in the acceleration
of such Debt prior to its Stated Maturity and, in each case, the principal amount of any
such Debt, together with the principal amount of any other such Debt under which there has
been a Payment Default or the maturity of which has been so accelerated and remains unpaid,
aggregates in excess of $30.0 million; |
| (7) | failure by the Company or any Restricted
Subsidiary that is a Significant Subsidiary (or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary) to pay final and non-appealable
judgments aggregating in excess of $30.0 million, which are not covered by indemnities or
third-party insurance, which judgments are not paid, discharged, vacated or stayed for a
period of 60 consecutive days; |
| (8) | the Company or any Restricted Subsidiary
that is a Significant Subsidiary (or any group of Restricted Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary), pursuant to or under or within the meaning
of any Bankruptcy Law: |
| (a) | commences a voluntary case or proceeding; |
| (b) | consents to the entry of an order for
relief against it in an involuntary case or proceeding; |
| (c) | consents to the appointment of a Custodian
of it or for all or substantially all of its property; |
| (d) | makes a general assignment for the benefit
of its creditors; |
| (e) | admits, in writing, its inability generally
to pay its debts as they become due; or |
| (f) | a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that: |
| (i) | is for relief against the Company or
any Restricted Subsidiary that is a Significant Subsidiary (or any group of Restricted Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary), in an involuntary case
or proceeding; |
| (ii) | appoints a Custodian of the Company
or any Restricted Subsidiary that is a Significant Subsidiary (or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary) or for all
or substantially all of the property of the Company or any Restricted Subsidiary that is
a Significant Subsidiary (or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary); or |
| (iii) | orders the liquidation of the Company
or any Restricted Subsidiary that is a Significant Subsidiary (or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary); |
and the order or
decree remains unstayed and in effect for 60 consecutive days; or
| (9) | unless all of the Collateral has been
released from the Note Liens in accordance with the provisions of the Security Documents,
the default, repudiation or disaffirmation by the Company or any of its Restricted Subsidiaries
of any of their obligations under the Security Documents (other than by reason of a release
of such obligation or Lien related thereto in accordance with this Indenture or the Security
Documents), which default, repudiation or disaffirmation results in Collateral having an
aggregate Fair Market Value in excess of $15.0 million not being subject to a valid, perfected
security interest in favor of the Collateral Agent under any applicable law (other than the
law of any foreign jurisdiction) (to the extent required under the Collateral Documents),
or a determination in a judicial proceeding that the Security Documents are unenforceable
or invalid against the Company or any of its Restricted Subsidiaries for any reason with
respect to Collateral having an aggregate Fair Market Value of $15.0 million or more;
provided that such default, repudiation, disaffirmation or determination is not rescinded,
stayed, or waived by the Persons having such authority pursuant to the Security Documents
or otherwise cured within sixty (60) days after the Company receives written notice thereof
specifying such occurrence from the Trustee or the Holders of at least 30% of the outstanding
principal amount of the Notes demanding that such default be remedied. |
Section 6.2
Acceleration.
If an Event of Default (other
than an Event of Default specified in clause (8) of Section 6.1 with respect to the Company) occurs and is continuing and is
actually known to a responsible officer of the Trustee, then and in every such case, the Trustee or the Holders of not less than 30%
in aggregate principal amount of the outstanding Notes may declare the principal amount of the Notes, premium, if any, and any accrued
and unpaid interest on the Notes to be due and payable immediately by a notice in writing to the Company (and to the Trustee if given
by Holders); provided, however, that after such acceleration, but before a judgment or decree based on acceleration,
the Holders of a majority in aggregate principal amount of the outstanding Notes may rescind and annul such acceleration if (i) all
Events of Default, other than the nonpayment of accelerated principal of, premium, if any, or interest on the Notes, have been cured
or waived as provided herein and (ii) such rescission or annulment would not conflict with any decree of judgment of a court of
competent jurisdiction.
In the event of a declaration
of acceleration of the Notes because an Event of Default described in clause (6) of Section 6.1 has occurred and is continuing,
the declaration of acceleration of the Notes shall be automatically rescinded and annulled if the event of default or payment default
triggering such Event of Default pursuant to clause (6) of Section 6.1 shall be remedied or cured by the Company or such Restricted
Subsidiary or waived by the holders of the relevant Debt within thirty (30) Business Days after the declaration of acceleration with
respect thereto and if the rescission and annulment of the acceleration of the Notes would not conflict with any judgment or decree of
a court of competent jurisdiction obtained by the Trustee for the payment of amounts due on the Notes.
If an Event of Default specified
in clause (8) of Section 6.1 occurs with respect to the Company, the principal amount of, premium, if any, and any accrued
and unpaid interest on the Notes then outstanding shall ipso facto become immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Trustee may withhold from Holders notice of any Default (except Default in
payment of principal of, premium, if any, and interest on, any Note) if the Trustee determines that withholding notice is in the interests
of the Holders.
If the Notes are accelerated
or otherwise become due prior to their stated maturity, in each case as a result of an Event of Default specified in clause (8) of
Section 6.1 (including the acceleration of any portion of the Debt evidenced by the Notes by operation of law), or if the Stated
Maturity of the Notes is shortened because the Existing Notes remain outstanding, the amount that shall then be due and payable shall
be equal to:
| (x) | (i) 100% of the principal amount
of the Notes then outstanding plus the Applicable Premium in effect on the date of
such acceleration or shortened maturity or (ii) the applicable redemption price in effect
on the date of such acceleration or shortened maturity, as applicable, plus |
| (y) | accrued and unpaid interest to, but excluding,
the date of such acceleration or shortened maturity, |
in each case as if such acceleration or shortened
maturity were an optional redemption of the Notes so accelerated.
Notwithstanding the generality
of the foregoing, if the Notes are accelerated or otherwise become due prior to their stated maturity, in each case, as a result of an
Event of Default specified in clause (8) of Section 6.1 (including the acceleration of any portion of the Debt evidenced by
the Notes by operation of law), or if the stated maturity of the Notes is shortened because the Existing Notes remain outstanding, the
Applicable Premium or the amount by which the applicable redemption price exceeds the principal amount of the Notes (the “Redemption
Price Premium”), as applicable, with respect to an optional redemption of the Notes shall also be due and payable as though
the Notes had been optionally redeemed on the date of such acceleration or shortened maturity and shall constitute part of the Obligations
with respect to the Notes in view of the impracticability and difficulty of ascertaining actual damages and by mutual agreement of the
parties as to a reasonable calculation of each Holder’s lost profits as a result thereof. If the Applicable Premium or the Redemption
Price Premium, as applicable, becomes due and payable, it shall be deemed to be principal of the Notes and interest shall accrue on the
full principal amount of the Notes (including the Applicable Premium or the Redemption Price Premium, as applicable) from and after the
applicable triggering event. Any premium payable pursuant to this paragraph shall be presumed to be liquidated damages sustained by each
Holder as the result of the acceleration or shortened maturity of the Notes, and the Company agrees that it is reasonable under the circumstances
currently existing. The premium shall also be payable in the event the Notes or this Indenture are satisfied, released or discharged
through foreclosure, whether by judicial proceeding, deed in lieu of foreclosure or by any other means. THE COMPANY AND EACH GUARANTOR
EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS
OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION OR SHORTENED MATURITY. The Company
expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s
length transaction between sophisticated business entities ably represented by counsel; (B) the premium shall be payable notwithstanding
the then prevailing market rates at the time acceleration occurs; (C) there has been a course of conduct between the Holders and
the Company giving specific consideration in this transaction for such agreement to pay the premium; and (D) the Company shall be
estopped hereafter from claiming differently than as agreed to in this paragraph. The Company expressly acknowledges that its agreement
to pay the premium to the Holders as herein described is a material inducement to the Holders to purchase the Notes. In no event shall
the Trustee or the Agent be responsible for any calculations including calculating the Redemption Price Premium, Applicable Premium or
Treasury Rate.
Section 6.3
Other Remedies.
If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, or interest on the
Notes or to enforce the performance of any provision of the Notes, this Indenture or any Security Document, subject, in each case, to
the Intercreditor Agreement.
The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.4
Waiver of Past Defaults.
The Holders of a majority
in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes (other than as a result of an acceleration), which shall require
the written consent of all of the Holders of the Notes then outstanding.
Section 6.5
Control by Majority.
Subject to the provisions
of the Security Documents, the Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred
on it. However, (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in personal liability, and (ii) the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 6.6
Limitation on Suits.
No Holder of any Note shall
have any right to institute any proceeding with respect to this Indenture or for any remedy hereunder, unless:
(a) such
Holder shall have previously given the Trustee written notice of a continuing Event of Default;
(b) the
Holders of at least 30% in aggregate principal amount of the outstanding Notes shall have in writing requested the Trustee to institute
such proceeding;
(c) such
Holders shall have offered the Trustee indemnity reasonably satisfactory to the Trustee; and
(d) the
Trustee shall not have received from the Holders of a majority in aggregate principal amount of the outstanding Notes a written direction
inconsistent with such request and shall have failed to institute such proceeding within sixty (60) days.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 6.7
Rights of Holders of Notes to Receive Payment.
Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest on or after the respective
due dates expressed in the Note (including in connection with an Offer to Purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8
Collection Suit by Trustee.
If an Event of Default specified
in Section 6.1(1) or (2) occurs and is continuing, without the possession of any of the Notes or the production thereof
in any proceeding related thereto, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee (including without limitation
any amounts due to the Trustee pursuant to Section 7.7), its agents and counsel.
Section 6.9
Trustee May File Proofs of Claim.
The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable
upon the conversion or exchange of the Notes or on any such claims and any Custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders
may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10
Priorities
Subject to the provisions
of the Security Documents, any money or property collected by the Trustee (or received by the Trustee from the Collateral Agent under
any Security Documents) pursuant to this Article VI and any money or other property distributable in respect of the Company’s
obligations under this Indenture after an Event of Default shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account of principal (or premium, if any) or interest, if any,
upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee,
Agent, Collateral Agent (including any predecessor Trustee, Agent and/or Collateral Agent), its agents and attorneys for amounts due
under Section 7.7, including payment of all reasonable compensation, fees, expenses and liabilities incurred, and all advances made,
by the Trustee, Agent and Collateral Agent and the costs and expenses of collection;
Second: to Holders
for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and interest respectively;
Third: without
duplication, to the Holders for any other Obligations owing to the Holders under this Indenture and the Notes; and Fourth: to the
Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 6.10.
Section 6.11
Undertaking for Costs
In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
Article VII
TRUSTEE
Section 7.1
Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and the Security Documents, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall be under a duty to examine the certificates and opinions specifically required to be furnished to it to determine
whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts or conclusions stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) this
paragraph does not limit the effect of paragraphs (b) or (e) of this Section 7.1;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it in accordance with the terms hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture, the Intercreditor Agreement or any provision of any Security
Document that in any way relates to the Trustee or the Collateral Agent is subject to Sections 7.1 and 7.2.
(e) No
provision of this Indenture or the Security Documents shall require the Trustee or the Collateral Agent to expend or risk its own funds
or incur any liability. The Trustee and the Collateral Agent shall be under no obligation to exercise any of their rights and powers
under this Indenture or the Security Documents at the request of any Holder, unless such Holder shall have offered to the Trustee and/or
the Collateral Agent, as applicable, security and indemnity satisfactory to it against any and all loss, claim, liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) The
Trustee shall be permitted to engage in other transactions; provided, however, that if it acquires any conflicting
interest it must eliminate such conflict within 90 days or resign.
(h) The
Trustee and the Collateral Agent agree to accept and act upon facsimile or electronic transmission of manually-signed documents (including
portable document format) hereunder.
Section 7.2
Rights of Trustee
(a) The
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any such document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel. The Trustee may consult with counsel of the Trustee’s own choosing and the Trustee shall be fully protected from liability
in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance on the advice or opinion of such counsel
or on any Opinion of Counsel.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture. Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by an Officer’s Certificate and a Board Resolution delivered to the Trustee. Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of negligence or willful misconduct on its part,
conclusively rely upon an Officer’s Certificate.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or a Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee security and indemnity reasonably satisfactory to the Trustee
against the losses, claims, costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
documents, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall have reasonable access after reasonable
notice during normal business hours to the books, records and premises of the Company or any Guarantor, personally or by agent or attorney
and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(h) The
rights, privileges, protections and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Persons employed to act hereunder
or under any Security Document (including the Collateral Agent and the Agent).
(i) The
permissive right of the Trustee to take or refrain from taking any actions enumerated in this Indenture or any Security Document shall
not be construed as a duty.
(j) In
the event that the Trustee (in such capacity or in any other capacity hereunder or under any Security Document) is unable to decide between
alternative courses of action permitted or required by the terms of this Indenture or any Security Document, or in the event that the
Trustee is unsure as to the application of any provision of this Indenture or any Security Document, or believes any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this
Indenture or any Security Document permits any determination by or the exercise of discretion on the part of the Trustee or is silent
or is incomplete as to the course of action that the Trustee is required to take with respect to a particular set of facts, the Trustee
may give notice (in such form as shall be appropriate under the circumstances) to the Holders requesting instruction as to the course
of action to be adopted, and to the extent the Trustee acts in good faith in accordance with any written instructions received from a
majority in aggregate principal amount of the then outstanding Notes, the Trustee shall not be liable on account of such action to any
Person. If the Trustee shall not have received appropriate instruction within ten (10) days of such notice (or such shorter period
as reasonably may be specified in such notice or as may be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action as it shall deem to be in the interests of the Holders and the Trustee shall have no liability
to any Person for such action or inaction.
(k) The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
Section 7.3
Individual Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11.
Section 7.4
Trustee’s Disclaimer
The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, or the existence, genuineness,
enforceability, value, filing financing or continuation statements or any other filings, or protection of any Collateral (except for
the safe custody of Collateral in its possession in accordance with the terms hereof), for the legality, effectiveness, enforceability
or sufficiency of any Security Document, or for the creation, perfection, priority, sufficiency or protection of any Note Lien, and it
shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s
direction under any provision of this Indenture, and it shall not be responsible for any statement or recital herein, any statement in
the Notes, or any statement or recital in any document in connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication on the Notes. In no event shall the Trustee or the Agent be responsible for any calculations including
calculating the Redemption Price Premium, Applicable Premium or Treasury Rate.
Section 7.5
Notice of Defaults
If a Default occurs and is
continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders a notice of the Default
within 90 days after it occurs, or if discovered after such 90 day period, promptly after the Trustee learns of such Default (unless
such Default shall have been cured or waived). Except in the case of a Default in payment of principal of, premium, if any, or interest
on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is
in the interests of the Holders.
The Trustee shall not be
deemed to have notice or be charged with knowledge of any Default or Event of Default (other than a Default or Event of Default in the
payment of interest or premium, if any, on, or the principal of, the Notes)unless a Responsible Officer of the Trustee has actual knowledge
thereof or shall have received written notice thereof at its address set forth in Section 12.2 from the Company, any Guarantor or
Holders of 30 % in aggregate principal amount of the then outstanding Notes specifying the occurrence and nature thereof and stating
that such notice is a notice of default.
Section 7.6
[Reserved]
Section 7.7
Compensation and Indemnity
The Company shall pay to
the Trustee from time to time compensation as shall be agreed to in writing by the Company and the Trustee for its acceptance of this
Indenture and services hereunder (it being hereby agreed that the compensation set forth in any fee letter between the Company and the
Trustee shall be deemed to be reasonable). The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements,
fees and expenses of the Trustee’s agents and counsel.
The Company and the Guarantors,
jointly and severally, shall indemnify the Trustee (which for purposes of this Section 7.7 shall include its officers, directors,
agents and employees) against any and all claims, damages, losses, liabilities (including environmental liabilities) or expenses incurred
by it arising out of or in connection with the acceptance or administration of its duties under the Note Documents, this Indenture, including
the costs and expenses of enforcing the Note Documents or this Indenture against the Company (including this Section 7.7) and defending
itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense may
be attributable to its own gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent
jurisdiction. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel,
including, if necessary, one local counsel in each relevant jurisdiction (which may be a single local counsel acting in multiple jurisdictions).
The Company and the Guarantors need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.
The obligations of the Company
and the Guarantors under this Section 7.7 shall survive the satisfaction and discharge or termination for any reason of this Indenture,
including any termination or rejection hereof under any Bankruptcy Law, or the resignation or removal of the Trustee.
To secure the Company’s
and the Guarantors’ obligations in this Section 7.7, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal, premium, if any, or interest, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge or termination for any reason of this Indenture and the resignation or removal
of the Trustee.
In addition, and without
prejudice to the rights provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders
services after an Event of Default specified in clause (8) of the first paragraph of Section 6.1 occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
“Trustee” for
the purposes of this Section 7.7 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each
agent, custodian and other person employed to act hereunder or under any Security Document; provided, however, that
the negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
The Trustee shall comply
with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 7.8
Replacement of Trustee
A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns, is
removed or becomes incapable of acting, or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint
a successor Trustee.
If a successor Trustee does
not take office within sixty (60) days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s
expense), the Company or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written
request by any Holder who has been a Holder for at least six (6) months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and the duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder
have been paid and subject to the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company’s obligations under and the Lien provided for in Section 7.7 shall continue for the benefit
of the retiring Trustee.
Section 7.9
Successor Trustee by Merger, Etc.
Any entity into which the
Trustee or any Agent may be merged or converted or with which the Trustee or any Agent may be consolidated, or any entity resulting from
any merger, conversion or consolidation to which the Trustee or any Agent shall be a party, or any entity succeeding to all or substantially
all of the corporate trust business of the Trustee or any Agent, shall be the successor of the Trustee or any Agent hereunder, as applicable,
provided such entity shall be otherwise qualified and eligible under this Article VII, to the extent operative, without the execution
or filing of any document or further act on the part of any of the parties hereto. In the case any Notes shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated
such Notes.
Section 7.10
Eligibility; Disqualification
There shall at all times
be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trust power and that is subject to supervision or examination by federal
or state authorities. The Trustee shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most
recent annual report of condition. If at any time the Trustee ceases to be eligible in accordance with the provisions of this Section 7.10,
it shall resign immediately in the manner and with the effect specified in this Article VII.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b) including
the provision in § 310(b)(1); provided that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company
or the Guarantors are outstanding if the requirements for exclusion set forth in TIA § 310(b)(1) are met.
Section 7.11
Preferential Collection of Claims Against the Company
The Trustee is subject to
TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated therein.
Section 7.12
Trustee’s Application for Instructions from the Company
Any application by the Trustee
for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or
omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective.
The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less than twenty (20) Business Days after the date any Officer
of the Company actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless
prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
Section 7.13
Limitation of Liability
In no event shall the Trustee
or the Collateral Agent, Paying Agent or Registrar or in any other capacity hereunder, be liable under or in connection with this Indenture
or under any Security Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever,
including but not limited to lost profits, whether or not foreseeable, even if the Trustee or the Collateral Agent, Paying Agent or Registrar
or in any other capacity hereunder, has been advised of the possibility thereof and regardless of the form of action in which such damages
are sought. The Trustee, the Collateral Agent and/or the Agent shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; pandemics; recognized public emergencies; quarantine restrictions; riots; interruptions; loss
or malfunctions of utilities, computer (hardware or software) or communication services; hacking, cyber-attacks, or other use or
infiltration of the Trustee’s, the Collateral Agent’s or the Agent’s technological infrastructure exceeding authorized
access; accidents; labor disputes; and acts of civil or military authority and governmental action. The provisions of this
Section 7.13 shall survive satisfaction and discharge or the termination for any reason of this Indenture and the resignation or
removal of the Trustee, the Collateral Agent or the Agent.
Section 7.14
Collateral Agent and Holders’ Authorization to Trustee
(a) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Collateral Agent, including under the Note Documents.
(b) The
rights, privileges, protections, immunities and benefits given to the Collateral Agent under the Intercreditor Agreement are incorporated
herein and enforceable by the Collateral Agent.
Section 7.15
Co-Trustees; Separate Trustee; Collateral Agent.
At any time or times, for
the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Company,
the Collateral Agent and the Trustee shall have power to appoint, and, upon the written request of (i) the Trustee or the Collateral
Agent or (ii) the Holders of at least a majority of the outstanding principal amount at maturity of the Notes, the Company shall
for such purpose join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper
to appoint, one (1) or more Persons approved by the Trustee either to act as co-trustee, jointly with the Trustee, or to act as
separate trustee, co-collateral agent, sub-collateral agent or separate collateral agent of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the other provisions of this Section 7.15. If the Company does not
join in such appointment within fifteen (15) days after the receipt by it of a request in accordance with this Section 7.15 so to
do, or in case an Event of Default has occurred and is continuing, the Trustee or the Collateral Agent alone shall have power to make
such appointment.
Should any written instrument
from the Company be requested by any co-trustee or separate trustee or co-collateral agent, sub-collateral agent or separate collateral
agent so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request of such co-trustee or separate trustee or separate collateral agent, be executed, acknowledged and
delivered by the Company.
Any co-trustee, separate
trustee or co-collateral agent, sub-collateral agent or separate collateral agent shall agree in writing to be and shall be subject to
the provisions of the applicable Security Documents as if it were the Trustee thereunder (and the Trustee shall continue to be so subject).
Every co-trustee or separate
trustee or co-collateral agent, sub-collateral agent or separate collateral agent shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following terms and subject in all cases to the provisions of the Security Documents, namely:
The Notes shall be authenticated
and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely, by the Trustee.
The rights, powers, duties
and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Trustee or by the Trustee and such co-trustee or separate trustee jointly, or by the
Trustee and such co-collateral agent, sub-collateral agent or separate collateral agent jointly as shall be provided in the instrument
appointing such co-trustee, separate trustee or separate collateral agent, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed by such co-trustee, separate trustee or co-collateral agent,
sub-collateral agent or separate collateral agent.
The Trustee at any time,
by an instrument in writing executed by it, with the concurrence of the Company evidenced by a Board Resolution, may accept the resignation
of or remove any co-trustee, separate trustee or co-collateral agent, sub-collateral agent or separate collateral agent appointed under
this Section 7.15, and, in case an Event of Default has occurred and is continuing, the Trustee shall have power to accept the resignation
of, or remove, any such co-trustee, separate trustee or co-collateral agent, sub-collateral agent or separate collateral agent without
the concurrence of the Company. Upon the written request of the Trustee, the Company shall join with the Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee,
separate trustee or co-collateral agent, sub-collateral agent or separate collateral agent so resigned or removed may be appointed in
the manner provided in this Section 7.15.
No co-trustee, separate trustee
or co-collateral agent, sub-collateral agent or separate collateral agent hereunder shall be liable by reason of any act or omission
of the Trustee, or any other such trustee, co-trustee, separate trustee, co-collateral agent, sub-collateral agent or separate collateral
agent hereunder.
The Trustee shall not be
liable by reason of any act or omission of any co-trustee, separate trustee, co-collateral agent, sub-collateral agent or separate collateral
agent.
Any Act of Holders delivered
to the Trustee shall be deemed to have been delivered to each such co-trustee, separate trustee or co-collateral agent, sub-collateral
agent or separate collateral agent, as the case may be.
Article VIII
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option
and at any time evidenced by a Board Resolution set forth in an Officer’s Certificate, elect to have either Section 8.2 or
8.3 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
Section 8.2
Legal Defeasance.
Upon the Company’s
exercise under Section 8.1 of the option applicable to this Section 8.2, the Company shall, subject to the satisfaction of
the conditions set forth in Section 8.4, be deemed to have been discharged from its obligations with respect to all outstanding
Notes, and all obligations of the Guarantors shall be deemed to have been discharged with respect to their Note Guarantees, on the date
the conditions set forth below are satisfied (hereinafter, “legal defeasance”). For this purpose, legal defeasance
means that the Company shall be deemed to have paid and discharged the entire Debt represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its other obligations under such Notes and this Indenture (and
the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the
rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes
when such payments are due from the trust referred to in Section 8.4(l);
(b) the
Company’s obligations with respect to the Notes under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2;
(c) the
rights, powers, trusts, duties and immunities of the Trustee and the Company’s and the Guarantors’ obligations in connection
therewith; and
(d) the
provisions of this Article VIII.
Subject to compliance with
this Article VIII, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3.
Section 8.3
Covenant Defeasance.
Upon the Company’s
exercise under Section 8.1 of the option applicable to this Section 8.3, the Company and the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.4, be released from their obligations under the covenants contained in Sections
4.3, 4.4, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 4.19, 4.20 and 5.1 with respect to the outstanding Notes and
Note Guarantees on and after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”
and, together with legal defeasance, “defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection
with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, covenant defeasance means that, with respect
to the outstanding Notes, the Company or any of its Subsidiaries may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.1, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1
of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4, clauses
(3), (4), (5), (6), (7) and (9) of the first paragraph of Section 6.1 shall not constitute Events of Default.
Section 8.4
Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the
conditions to the application of either Section 8.2 or 8.3 to the outstanding Notes:
| (1) | the Company must irrevocably deposit or
cause to be irrevocably deposited with the Trustee, in trust, for the benefit of the Holders,
cash in U.S. Dollars, non-callable U.S. Government Obligations, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized investment
bank, appraisal firm or firm of independent chartered public accountants, expressed in a
written opinion thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay the principal of, premium, if any, and interest on the outstanding
Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to Stated Maturity or to a
particular redemption date; |
| (2) | in the case of legal defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling
or (B) since the Issue Date, there has been a change in the applicable U.S. federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders and beneficial owners of the outstanding Notes will not recognize
gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such legal defeasance had not occurred; |
| (3) | in the case of covenant defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders and beneficial owners of the outstanding Notes will not recognize gain or loss for
U.S. federal income tax purposes as a result of such covenant defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred; |
| (4) | no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit or the granting
of any Lien to secure such borrowing); |
| (5) | such legal defeasance or covenant defeasance
shall not result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company is a party or by
which the Company is bound; and |
| (6) | the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that
all conditions precedent relating to such legal defeasance or covenant defeasance have been
satisfied. |
Notwithstanding the foregoing, the Opinion of
Counsel required by clause (2) above with respect to a legal defeasance need not to be delivered if all Notes not theretofore delivered
to the Trustee for cancellation (x) have become due and payable by reason of the mailing of a notice of redemption or otherwise,
(y) will become due and payable within one year or (z) are to be called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the Trustee.
Section 8.5
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6,
all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4 in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company or any Subsidiary thereof acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge in connection with any investment, reinvestment or liquidation of an investment
imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.4 or the principal
and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.
Anything in this Article VIII
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the written request of the Company
and be relieved of all liability with respect to any money or non-callable U.S. Government Obligations held by it as provided in Section 8.4
which, in the opinion of a nationally recognized firm of independent chartered public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4(1)), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Section 8.6
Repayment to Company.
Subject to applicable law,
any money or property deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest, if any, on any Note and remaining unclaimed for one (1) year after such principal and premium,
if any, or interest has become due and payable shall be paid to the Company on its written 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, 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; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such notification or publication, any unclaimed balance of such money or property
then remaining shall be repaid to the Company.
Section 8.7
Reinstatement.
If the Trustee or Paying
Agent is unable to apply any U.S. Dollars or non-callable U.S. Government Obligations in accordance with Section 8.2 or 8.3, as
the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.2 or 8.3, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the money or property held by the Trustee or Paying
Agent.
Section 8.8
Discharge.
This Indenture will be discharged
and will cease to be of further effect as to all Notes issued hereunder (subject to those provisions that by their express terms shall
survive) (a “Discharge”), when:
| (A) | all Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes
for whose payment money has been deposited in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation, or |
| (B) | all Notes not theretofore delivered to the
Trustee for cancellation (i) have become due and payable by reason of the mailing of
a notice of redemption or otherwise, (ii) will become due and payable within one year
or (iii) are to be called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption and, in each case, the
Company has irrevocably deposited or caused to be deposited with the Trustee funds in trust
of cash in U.S. Dollars, non-callable U.S. Government Obligations, or a combination thereof
in an amount sufficient to pay and discharge the principal, premium, if any, and interest
on, the Notes to the Stated Maturity thereof or the date of redemption, as the case may be;
provided, that upon any redemption that requires the payment of the Applicable Premium,
the amount deposited shall be sufficient for purposes of this Indenture to the extent that
an amount is deposited with the Trustee equal to the Applicable Premium calculated as of
the date of the notice of redemption, with any deficit as of the date of redemption (any
such amount, the “Applicable Premium Deficit”) only required to be deposited
with the Trustee by 11:00 am NY time on or prior to the date of redemption. Any Applicable
Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee
simultaneously with the deposit of such Applicable Premium Deficit that confirms that such
Applicable Premium Deficit shall be applied toward such redemption; |
| (2) | the Company has paid or caused to be paid
all other sums then due and payable under this Indenture by the Company; |
| (3) | the deposit will not result in a breach
or violation of, or constitute a default under, any other material instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is bound; |
| (4) | the Company has delivered irrevocable
instructions to the Trustee to apply the deposited money toward the payment of the Notes
at maturity or on the redemption date, as the case may be; and |
| (5) | the Company has delivered to the Trustee
an Officer’s Certificate and an Opinion of Counsel to the Trustee, each stating that
all conditions precedent under this Indenture relating to the Discharge have been satisfied. |
The Collateral shall be released
from the Note Lien securing the Notes, as provided under Section 10.4 hereof, upon a Discharge in accordance with the provisions
of this Section 8.8.
Article IX
AMENDMENT,
SUPPLEMENT AND WAIVER
Section 9.1
Without Consent of Holders.
Notwithstanding Section 9.2
of this Indenture, without the consent of any Holders, the Company, the Guarantors, the Trustee and/or the Collateral Agent, as applicable,
may amend or supplement the Note Documents to:
| (1) | cure any ambiguity, defect, omission,
mistake, or inconsistency or to make any modification of a formal, minor or technical nature; |
| (2) | evidence the succession of another Person
to the Company or any Guarantor and the assumption by any such successor of the covenants
and other obligations of the Company or such Guarantor under this Indenture, the Notes, the
Note Guarantees or the Security Documents; |
| (3) | comply with the covenant relating to consolidations,
amalgamations, mergers, conveyances, transfers and leases; |
| (4) | add to the covenants of the Company or
any Guarantor for the benefit of the Holders, or to surrender any right or power herein conferred
upon the Company or any Restricted Subsidiary; |
| (5) | add additional Events of Default; |
| (6) | provide for uncertificated Notes in addition
to or in place of certificated Notes, provided that such uncertificated Notes are in registered
form for purposes of Section 163(f) of the Code; |
| (7) | evidence and provide for the acceptance
and appointment under this Indenture or the Security Documents of a successor Trustee or
Collateral Agent; |
| (8) | provide for or confirm the issuance of
Additional Notes and all related obligations in accordance with the terms of this Indenture
and the Security Documents; |
| (9) | add Guarantors with respect to the Notes
or to release a Guarantor from its Note Guarantee in accordance with this Indenture; |
| (10) | make any change that would provide any
additional rights or benefits to the Holders or that does not adversely affect the legal
rights of the Holders in any material respect, as determined by the Company in good faith; |
| (11) | make any amendment to the provisions
of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture,
including to facilitate the issuance and administration of the Notes or to comply with the
rules of any applicable securities depository; provided, however,
that (i) compliance with this Indenture as so amended would not result in Notes being
transferred in violation of the Securities Act or any applicable securities law and (ii) such
amendment does not materially and adversely affect the rights of Holders to transfer Notes; |
| (12) | conform the text of this Indenture or
any other Note Document to any provision of the “Description of New Notes” in
the Offering Memorandum to the extent that such was intended to be a verbatim recitation
of a provision of this Indenture or any other Note Documents, as certified in an Officer’s
Certificate; |
| (13) | provide for the release, addition, completion,
confirmation or grant of Collateral or Note Guarantees permitted or required by this Indenture
or the Security Documents, including the entering into or execution of additional or supplemental
Collateral Documents, supplemental indentures and/or Note Guarantees or to subordinate such
Lien when permitted or required by this Indenture or the Security Documents, including the
Intercreditor Agreement; |
| (14) | mortgage, pledge, hypothecate or grant
any other Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders,
as additional security for the payment and performance of all or any portion of the Note
Obligations under this Indenture and the Notes, in any property or assets, including any
which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required
to be granted to the Collateral Agent for the benefit of the Holders pursuant to this Indenture,
any of the Security Documents or otherwise; |
| (15) | (i) enter into additional, amended
or supplemental Security Documents (including an amended Intercreditor Agreement to provide
for Additional First Lien Obligations or Additional Second Lien Obligations incurred pursuant
to this Indenture and, if then in effect, an amended Second Lien Pari Passu Intercreditor
Agreement to provide for Additional Second Lien Obligations) or (ii) provide for the
release of Collateral from the Lien securing the Obligations under the Notes, this Indenture
and the Security Documents when permitted or required by the Security Documents, the Intercreditor
Agreement, the Second Lien Pari Passu Intercreditor Agreement (if then in effect) or this
Indenture; or |
| (16) | secure any Additional Second Lien Obligations
under the Security Documents. |
Section 9.2
With Consent of Holders.
Except as provided below
in this Section 9.2, the Note Documents may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and any existing Default or Event of Default or compliance with any provision of the Note Documents
may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with purchase of, or tender offer or exchange offer for, the Notes); provided, however,
that without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not (with respect to any Notes held
by a non-consenting Holder):
| (1) | change the Stated Maturity of the principal
of, or any installment of interest on, any Note; |
| (2) | reduce the principal of, or rate of interest
on, or premium payable on, any Note; |
| (3) | change the place of payment where, or
the currency in which, the principal of, or interest or premium, if any, on any Note is payable
or impair the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof; |
| (4) | change the date on which any Notes may
be subject to redemption or reduce the redemption price therefor (it being understood that
a change to any advance notice requirement with respect to such date shall not be deemed
to be a change of such date); |
| (5) | reduce the percentage in aggregate principal
amount of Notes whose Holders must consent to an amendment, supplement or waiver; |
| (6) | subordinate, in right of payment, the
Notes to any other Debt of the Company; |
| (7) | waive a Default or Event of Default in
the payment of principal of, premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes and the consequences thereof by the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes and a waiver of the payment default
that resulted from such acceleration); |
| (8) | waive a redemption payment with respect
to any Note (other than a payment required by Section 4.10 or Section 4.14); |
| (9) | make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of holders of Notes to receive
payments of principal of, premium, if any, and interest on the Notes when due and payable;
or |
| (10) | make any change in the preceding amendment
and waiver provisions. |
In addition, any amendment
or supplement to, or waiver of, the provisions of the Note Documents that has the effect of releasing (x) all or substantially all
of the Collateral from the Note Liens securing the Notes or (y) any Guarantor from any of its obligations under its Note Guarantee
or this Indenture, except in accordance with the terms of this Indenture, will, in each case, require the consent of the Holders of at
least 66 2/3% in aggregate principal amount of the outstanding Notes.
The consent of the Holders
is not necessary under this Section 9.2 to approve the particular form of any proposed amendment of any Note Document. It is sufficient
if such consent approves the substance of the proposed amendment. A consent to any amendment or waiver under this Indenture by any Holder
of Notes given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
For the avoidance of doubt,
no amendment to, or deletion of any of the covenants described in Article IV or action taken in compliance with the covenants in
effect at the time of such action, shall be deemed to impair or affect any rights of any Holder of Notes to receive payment of principal
of, or premium, if any, or interest on, the Notes or to institute suit for the enforcement of any payment on or with respect to such
Holder’s Notes.
Section 9.3
Revocation and Effect of Consents.
Until an amendment, supplement
or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder
of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent
is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or amendment becomes effective. When an amendment, supplement or
waiver becomes effective in accordance with its terms, it thereafter binds every Holder.
The Company may, but shall
not be obligated to, fix a record date for determining which Holders consent to such amendment, supplement or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of thirty (30) days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished for the Trustee prior to such solicitation pursuant to Section 2.5
or (ii) such other date as the Company shall designate.
Section 9.4
Notation on or Exchange of Notes.
The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes
may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
After any amendment, supplement
or waiver becomes effective, the Company shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The
failure to give such notice shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.5
Trustee to Sign Amendments, Etc.
The Trustee shall sign any
amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. The Company and the Guarantors may not sign an amendment or supplemental
indenture until their respective Boards of Directors approve it. In signing or refusing to sign any amendment or supplemental indenture
the Trustee shall receive and shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating
that the execution of such amendment or supplemental indenture is authorized or permitted by this Indenture, that all conditions precedent
thereto have been satisfied or waived, that such amendment or supplemental indenture is not inconsistent herewith, and that it will be
valid and binding upon the Company in accordance with its terms. The Trustee may but need not sign any such amendment or supplemental
indenture. In signing such amendment or supplemental indenture, the Trustee shall receive indemnity reasonably satisfactory to it.
Article X
SECURITY
Section 10.1
Appointment, Authorization and Rights of the Collateral Agent.
(a) The
Collateral Agent is hereby designated and appointed as the Collateral Agent of the Trustee and the Holders under the Security Documents,
and is authorized as the Collateral Agent for the Trustee and such Holders to execute and enter into each of the Security Documents and
the Intercreditor Agreement and all other instruments relating to the Security Documents and (i) to take action and exercise such
powers as are expressly required or permitted hereunder and under the Security Documents and the Intercreditor Agreement and all instruments
relating hereto and thereto and (ii) to exercise such powers and perform such duties as are in each case, expressly delegated to
the Collateral Agent by the terms hereof and thereof together with such other powers as are reasonably incidental hereto and thereto.
(b) The
Collateral Agent is hereby authorized to execute and enter into any other Intercreditor Agreement that may be entered into after the
Issue Date by the Company, any Guarantor and the Collateral Agent in connection with Credit Facilities not otherwise prohibited by this
Indenture (which is not materially less favorable to the Collateral Agent and the Holders (taken as a whole) than the Intercreditor Agreement
referred to in clause (i) of the definition of “Intercreditor Agreement” set forth in Section 1.1) (as certified
to by the Company in an Officer’s Certificate delivered to the Trustee and the Collateral Agent).
(c) Notwithstanding
any provision to the contrary elsewhere in this Indenture, the Intercreditor Agreement or the Security Documents, the Collateral Agent
shall not have any duties or responsibilities except those expressly set forth herein or therein or any fiduciary relationship with any
Holder or the Trustee, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Indenture, the Intercreditor Agreement or any Security Document or otherwise exist against the Collateral Agent.
(d) Before
the Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or Opinion of Counsel or both. The Collateral
Agent shall not be liable for any action it takes or omits to take in good faith in reliance on any such Officer’s Certificate
or Opinion of Counsel. The Collateral Agent may consult with counsel of the Collateral Agent’s own choosing and the Collateral
Agent shall be fully protected from liability in respect of any action taken, suffered or omitted by it hereunder or under the Security
Documents in good faith and in reliance on the advice or opinion of such counsel or on any Opinion of Counsel.
(e) In
the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind
in regard thereto, in order to carry out any obligation for the benefit of another, which in the Collateral Agent’s sole discretion
may cause the Collateral Agent to be considered an “owner or operator” under any environmental laws or otherwise cause the
Collateral Agent to incur, or to be exposed to, any environmental liabilities or any other liability under any other federal, state or
local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange
for the transfer of the title or control of the asset to a court-appointed receiver. The Collateral Agent shall not be liable to any
Person for any environmental liabilities or any environmental claims or contribution actions under any federal, state or local law, rule or
regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating
to any kind of discharge or release or threatened discharge or release of any hazardous substances into the environment.
(f) The
Collateral Agent shall have no responsibility for or liability with respect to monitoring compliance of any other party to this Indenture
or any other document related hereto or thereto. The Collateral Agent has no duty to monitor the value or rating of any collateral on
an ongoing basis.
Section 10.2
Security Documents; Additional Collateral.
(a) Security
Documents. In order to secure the due and punctual payment of the Note Obligations, the Company, the Guarantors, the Collateral Agent
and the other parties thereto have simultaneously with the execution of this Indenture entered or, in accordance with the provisions
of Section 4.19, Section 4.20 and this Article X and Sections 5.1 and 12.1 of the security agreement referred to in clause
(i) of the definition of “Security Agreement” set forth in Section 1.1, shall enter into the Security Documents,
including any security agreement entered into after the Issue Date by the Company, the Collateral Agent and any Guarantors, identical
in form and substance to the abovementioned Security Agreement, except with such changes as are necessary for such document to be governed
by U.S. law and to perfect the Note Liens in the Collateral owned by such Guarantors.
(b) Additional
Collateral. With respect to assets acquired after the Issue Date, the Company or applicable Guarantor shall take the applicable actions
required by the Security Documents.
Section 10.3
Recording, Registration and Opinions.
The Company shall furnish
to the Collateral Agent (with a copy to the Trustee) on or within one month after March 15 of each year, commencing March 15,
2024, an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements, financing statement
amendments and continuation statements have been or will be executed (if required) and filed that are necessary, as of such date or promptly
thereafter and during the succeeding twelve (12) months, to maintain the perfection of Note Liens under the Security Documents on the
Collateral, and reciting the details of such action or (B) stating that, in the opinion of such counsel, no such action is necessary
to maintain the perfection of such Note Liens. Such Opinion of Counsel may refer to prior Opinions of Counsel and contain customary assumptions,
qualifications and exceptions and may rely on an Officer’s Certificate of the Company.
Section 10.4
Releases of Collateral.
The Company and the Guarantors
shall be entitled to releases of assets included in the Collateral from the Note Liens securing the Obligations under the Notes and the
Note Guarantees under any one or more of the following circumstances:
| (1) | in whole or in part, as applicable, as
to all or any portion of property subject to such Note Liens which has been taken by eminent
domain, condemnation or other similar circumstances; |
| (2) | in connection with asset dispositions
permitted or not prohibited under Section 4.10 (provided that, for the avoidance of
doubt, if any assets included in the Collateral are released to a Restricted Subsidiary that
is a Guarantor, the assets will not be released from the Note Liens securing the Obligations
under the Notes and the Note Guarantees); |
| (3) | if any Guarantor is released from its
Note Guarantee in accordance with the terms of this Indenture (including by virtue of such
Guarantor ceasing to be a Restricted Subsidiary), that Guarantor’s assets will also
be released from the Note Liens securing the Obligations under the Notes and the Note Guarantees;
or |
| (4) | if required in accordance with the terms
of the Intercreditor Agreement, including in connection with any Enforcement Action by any
First Lien Representative or any First Lien Collateral Agent or any other exercise of any
First Lien Representative’s or any First Lien Collateral Agent’s remedies in
respect of the Collateral. |
The Note Liens securing the
Obligations under the Notes and the Note Guarantees also shall be released:
| (1) | upon legal defeasance or covenant defeasance
or satisfaction and discharge of this Indenture as described in Article VIII; or |
| (2) | with the consent of the holders of the
requisite percentage of Notes in accordance with Article IX. |
Section 10.5
Form and Sufficiency of Release.
In the event that either
Company or any Guarantor has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion
of the Collateral that, under the terms of this Indenture may be sold, exchanged or otherwise disposed of by the Company or any Guarantor,
and the Company or such Guarantor requests the Trustee to furnish a written disclaimer, release or quitclaim of any interest in such
property under this Indenture, the applicable Guarantee and the Security Documents, upon receipt of an Officer’s Certificate and
Opinion of Counsel to the effect that such release complies with Section 10.4 and specifying the provision in Section 10.4
pursuant to which such release is being made (upon which the Trustee may exclusively and conclusively rely), the Trustee shall execute,
acknowledge and deliver to the Company or such Guarantor (or instruct the Collateral Agent to do the same) such an instrument in the
form provided by the Company, and providing for release without recourse and shall take such other action as the Company or such Guarantor
may reasonably request and as necessary to effect such release. Before executing, acknowledging or delivering any such instrument, the
Trustee shall be furnished with an Officer’s Certificate and an Opinion of Counsel (on which the Trustee shall be entitled to conclusively
and exclusively rely) each to the effect that such release is authorized and permitted by the terms hereof and the Security Documents
and that all conditions precedent with respect to such release have been satisfied.
Section 10.6
Possession and Use of Collateral.
Subject to the provisions
of the Security Documents and the Intercreditor Agreement, the Company and the Guarantors shall have the right to remain in possession
and retain exclusive control of and to exercise all rights with respect to the Collateral (other than monies or U.S. Government Obligations
deposited pursuant to Article VIII, and other than as set forth in the Security Documents, the Intercreditor Agreement and this
Indenture), to operate, manage, develop, lease, use, consume and enjoy the Collateral (other than monies and U.S. Government Obligations
deposited pursuant to Article VIII and other than as set forth in the Security Documents, the Intercreditor Agreement and this Indenture),
to alter or repair any Collateral so long as such alterations and repairs do not impair the Lien of the Security Documents hereon, and
to collect, receive, use, invest and dispose of the reversions, remainders, interest, rents, lease payments, issues, profits, revenues,
proceeds and other income thereof.
Section 10.7
Purchaser Protected.
No purchaser or grantee of
any property or rights purporting to be released shall be bound to ascertain the authority of the Trustee or Collateral Agent to execute
the release or to inquire as to the existence of any conditions herein prescribed for the exercise of such authority so long as the conditions
set forth in Section 10.5 have been satisfied.
Section 10.8
Authorization of Actions to Be Taken by the Collateral Agent Under the Security Documents and the Intercreditor Agreement.
The Holders and the parties
hereto agree that the Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits
provided to the Collateral Agent by the Security Documents and the Intercreditor Agreement. Furthermore, each Holder of a Note, by accepting
such Note, consents to the terms of and authorizes and directs the Trustee and the Collateral Agent to enter into and perform the Security
Documents and the Intercreditor Agreement in each of its capacities thereunder.
Section 10.9
Authorization of Receipt of Funds by the Trustee Under the Security Agreement.
The Trustee is authorized
to receive any funds for the benefit of Holders distributed under the Security Documents to the Trustee, and to apply such funds as provided
in Section 6.10.
Section 10.10
Powers Exercisable by Receiver or Collateral Agent.
In case the Collateral shall
be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article X upon the Company or any
Guarantor, as applicable, with respect to the release, sale or other disposition of such Collateral may be exercised by such receiver
or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company
or any Guarantor, as applicable, or of any Officer or Officers thereof required by the provisions of this Article X.
For the avoidance of doubt,
nothing herein shall require the Collateral Agent to file financing statements or continuation statements, or to be responsible for maintaining
the security interests purported to be created as described herein (except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder or under any other Security Documents) and such responsibility shall be solely
that of the Company.
Article XI
NOTE
GUARANTEES
Section 11.1
Note Guarantees.
(a) Each
Guarantor hereby jointly and severally, unconditionally and irrevocably guarantees the Notes and obligations of the Company hereunder
and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (i) the principal of and premium, if any, and interest on the Notes shall be paid in full when due, whether at Stated
Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code), and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder shall be paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the
same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity,
by acceleration or otherwise. Each of the Note Guarantees of the Guarantors shall be a guarantee of payment and not of collection.
(b) Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(c) Each
Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company or any other Person, protest, notice and all
demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged as to any Note except by complete
performance of the obligations contained in such Note and such Note Guarantee or as provided for in this Indenture. Each of the Guarantors
hereby agrees that, in the event of a default in payment of principal or premium, if any, or interest on such Note, whether at its Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of,
or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors
to enforce such Guarantor’s Note Guarantee without first proceeding against the Company or any other Guarantor. Each Guarantor
agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented
by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes,
or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
(d) If
any Holder or the Trustee is required by any court or otherwise to return to the Company or any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any Guarantor, any amount paid by any of them to the Trustee
or such Holder, the Note Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force
and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any
Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(e) Each
Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Note Guarantee
of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Note Guarantee of such
Guarantor.
Section 11.2
[Reserved].
Section 11.3
Severability.
In case any provision of
any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 11.4
Limitation of Guarantors’ Liability.
Each Guarantor and by its
acceptance hereof each Holder confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute
a fraudulent transfer or fraudulent conveyance for purposes of the Bankruptcy Law. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the Obligations of such Guarantor under its Note Guarantee shall be limited
to the maximum amount that will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect
of the Obligations of such other Guarantor under its Note Guarantee, result in the Obligations of such Guarantor under its Note Guarantee
not becoming voidable under applicable Bankruptcy Law relating to fraudulent transfer or fraudulent conveyance.
Section 11.5
Guarantors May Consolidate, Etc., on Certain Terms.
Subject to Section 11.6,
a Guarantor (other than the Company) may not sell or otherwise dispose of all or substantially all of its assets, or consolidate with
or merge with or into (whether or not such Guarantor is the surviving Person) another Person unless:
| (1) | immediately after giving effect to such
transactions, no Default or Event of Default exists; |
| (A) | the Person acquiring the property in any
such sale or disposition or the Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) (the “Successor Guarantor”) assumes all
the obligations of that Guarantor under this Indenture pursuant to a supplemental indenture
in substantially the form attached as Exhibit D; or |
| (B) | the Net Cash Proceeds of any such sale or
other disposition are applied in accordance with the provisions of Section 4.10;
and |
| (3) | in the case of any transaction pursuant
to subclause (2)(A) above, |
| (A) | such Guarantor or the Successor Guarantor,
as applicable, causes such amendments, supplements or other instruments to be executed, delivered,
filed and recorded, as applicable, in such jurisdictions as may be required by applicable
law to preserve and protect the Lien of the Security Documents on the Collateral owned by
or transferred to the Successor Guarantor; |
| (B) | the Collateral owned by or transferred to
such Guarantor or the Successor Guarantor, as applicable, shall (a) continue to constitute
Collateral under this Indenture and the Security Documents, (b) be subject to the Note
Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the
Notes, and (c) not be subject to any Lien other than Permitted Collateral Liens; |
| (C) | the property and assets of the Person which
is merged or consolidated with or into such Guarantor or the Successor Guarantor, as applicable,
to the extent that they are property or assets of the types which would constitute Collateral
under the Security Documents, shall be treated as after-acquired property and such Guarantor
or the Successor Guarantor shall take such action as may be reasonably necessary to cause
such property and assets to be made subject to the Note Lien of the Security Documents in
the manner and to the extent required in this Indenture; and |
| (4) | the Company delivers, or causes to be
delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel (upon
which the Trustee shall be entitled to conclusively and exclusively rely), each stating that
such sale, other disposition, consolidation or merger complies with the requirements of this
Indenture. |
In case of any such consolidation, merger, sale
or conveyance and upon the assumption by the Successor Guarantor, by supplemental indenture, executed and delivered to the Trustee, of
the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such Successor Guarantor shall succeed to and be substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. All the Note Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all such Note Guarantees
had been issued at the date of the execution hereof.
Except as set forth in Articles
IV and V, and notwithstanding clauses (1) and (2) above, nothing contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or conveyance of
the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
Section 11.6
Release of a Guarantor.
The Note Guarantee of a Guarantor
and its obligations under the Note Documents shall be automatically and unconditionally released:
(a) in
connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger,
consolidation, amalgamation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company
or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 or Section 5.1;
(b) in
connection with any sale, issuance or other disposition of Equity Interests of that Guarantor to a Person that is not (either before
or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale, issuance or other disposition
does not violate Section 4.10 and the Guarantor ceases to be a Restricted Subsidiary of the Company as a result of such sale, issuance
or other disposition;
(c) if
the Company designates that Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture;
(d) upon
receipt by the Trustee of an Officer’s Certificate certifying that such Guarantor has met the definition of an Excluded Subsidiary;
(e) upon
the release, discharge or termination of the guarantee by, or direct obligations of, such Guarantor under the ABL Credit Facility, the
Existing Notes and all other Debt for borrowed money in a principal amount in excess of $25.0 million (if any), other than a release,
discharge or termination by or as a result of payment in connection with the enforcement of remedies under such guarantee or direct obligations;
(f) upon
the release of such Guarantor from its Note Guarantee with the consent of the Holders of the requisite percentage of Notes in accordance
with Article IX; or
(g) upon
legal defeasance, covenant defeasance or Discharge of this Indenture under Article VIII.
Upon any release of a Guarantor
from its Note Guarantee, such Guarantor shall also be automatically and unconditionally released from its obligations under the Security
Documents. At the Company’s request and expense, the Trustee shall execute and deliver any instrument evidencing the release of
any Guarantor from its obligations under its Note Guarantee pursuant to this Section 11.6.
Section 11.7
Benefits Acknowledged.
Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee
and waivers pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 11.8
Future Guarantors.
Each Restricted Subsidiary
of the Company organized under the laws of the United States, any political subdivision thereof, any state thereof or the District of
Columbia that is required to Guarantee the Notes (and thereby become a Guarantor) after the Issue Date pursuant to Section 4.17
shall promptly (i) execute and deliver to the Trustee a supplemental indenture, in substantially the form attached hereto as Exhibit D,
pursuant to which such Restricted Subsidiary shall unconditionally Guarantee, on a senior secured basis, all of the Company’s Obligations
under the Notes upon the terms set forth in this Indenture and (ii) execute and deliver to the Collateral Agent a joinder agreement
to each of the applicable Security Documents defining the terms of the security interests that secure payment and performance when due
of the Notes, and take all actions required by the Security Documents to cause the Note Liens created thereunder to be duly perfected
in accordance with applicable law, including the execution and delivery of other applicable Security Documents and the filing of financing
statements in the jurisdictions of incorporation or formation of such Guarantor and where such Guarantor’s assets are located.
Concurrently with the execution and delivery of such supplemental indenture, the Company shall deliver to the Trustee an Opinion of Counsel
and an Officer’s Certificate (upon which the Trustee shall be entitled to conclusively and exclusively rely) to the effect that
such supplemental indenture has been duly authorized, executed and delivered by such Guarantor and that such supplemental indenture is
a legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and/or to such
other matters as the Trustee may reasonably request (subject to customary exceptions, assumptions and qualifications).
Section 11.9
Subordination of TLM Equipment, LLC’s Guarantee.
Anything herein to the contrary
notwithstanding, each of the Company and the Guarantors, for itself and its successors, and each Holder agrees that the payment by TLM
Equipment, LLC (“TLM Equipment”) of all Obligations with respect to its Note Guarantee is subordinated in right of
payment to the prior payment in full in cash of all Obligations under the ABL Credit Facility. The Trustee is authorized and shall take
such action as may be necessary or appropriate to effectuate the subordination as provided in this Section 11.9. No provision of
this Section 11.9 shall prevent the occurrence of any Default or Event of Default hereunder.
Upon any payment or distribution
of the assets of TLM Equipment to creditors upon a total or partial liquidation or dissolution, or in a reorganization, of TLM Equipment,
or, in each case, any similar proceeding relating to TLM Equipment or its property, the holders of Obligations under the ABL Credit Facility
shall be entitled to receive payment in full in cash with respect to the assets or property of TLM Equipment before Holders of the Notes
shall be entitled to receive any payment with respect to the assets or property of TLM Equipment.
Article XII
MISCELLANEOUS
Section 12.1
[Reserved].
Section 12.2
Notices.
Any notice or communication
by the Company, any Guarantor, the Collateral Agent or the Trustee to the others is duly given if in writing and delivered in person
or mailed by first class mail (registered or certified, return receipt requested) or sent by electronic transmission (including facsimile
transmission or e- mail) or overnight air courier guaranteeing next day delivery, to the others address:
If to the Company and/or
any Guarantor:
Arrow Bidco, LLC
9320 Lakeside Boulevard, Suite 300
The Woodlands, TX 77381
Attention: Heidi D. Lewis
With a copy to:
Allen & Overy LLP
1221 Avenue of the Americas, 21st Floor
New York, New York 10020
Attention: Jeffrey Pellegrino
If to the Trustee or to the
Collateral Agent:
Deutsche Bank Trust Company Americas
Trust & Agency Services
1 Columbus Circle, 17th Floor
Mail Stop: NYC01-1710
New York, New York 10019
Fascimile: (732) 578-4635
Attn: Corporates Team, Arrow BidCo, LLC, AA5818
The Company, the Guarantors the Trustee, and
the Collateral Agent by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications
(other than those sent to Holders, the Collateral Agent and the Trustee) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five (5) Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if delivered by electronic transmission; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier promising next Business Day delivery. All notices and communications to the Trustee and/or the Collateral
Agent shall only be deemed to have been duly given upon receipt by a Responsible Officer of the Trustee.
Any notice or communication
to a Holder shall be mailed by first class mail or by overnight air courier promising next Business Day delivery to its address shown
on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it,
except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
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
or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or
its designee) if delivered electronically.
Section 12.3
[Reserved].
Section 12.4
Certificate and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture (other than the initial issuance of the Notes), the Company shall
furnish to the Trustee upon request:
(a) an
Officer’s Certificate (which shall include the statements set forth in Section 12.5) to the effect that, in the opinion of
the signer or signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an
Opinion of Counsel (which shall include the statements set forth in Section 12.5) to the effect that, in the opinion of such counsel,
all such conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied.
Section 12.5
Statements Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(b) 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;
(c) a
statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(d) a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied;
provided, that an issuer of an
Opinion of Counsel may rely as to matters of fact on an Officer’s Certificate or a certificate of a public official.
Section 12.6
Rules by Trustee and Agents.
The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 12.7
No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future
director, officer, employee, general or limited partner, incorporator or stockholder of the Company or any of its Subsidiaries, as such,
will have any personal liability for any obligations of the Company or any Guarantor by reason of his, her or its status as such director,
officer, employee, stockholder, general partner, limited partner or incorporator, under the Note Documents or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities
under the U.S. federal securities laws or other corporate laws, and it is the view of the SEC that such a waiver is against public policy.
Section 12.8
Governing Law.
THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES OF THE GUARANTORS, IF ANY.
Section 12.9
Consent to Jurisdiction; Waiver of Trial by Jury; Service of Process.
The parties to this Indenture
each hereby irrevocably submit to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan
in The City of New York in any action or proceeding arising out of or relating to the Notes, the Note Guarantees or this Indenture, and
all such parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such
New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES,
THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.10
No Adverse Interpretation of Other Agreements.
This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 12.11
Successors.
All agreements of the Company
and the Guarantors in this Indenture, the Notes and the Note Guarantees, as applicable, shall (except as provided in Section 11.6)
bind their respective successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors and assigns.
Section 12.12
Severability.
In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 12.13
Counterpart Originals.
The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery
of an executed counterpart of a signature page to this Indenture by telecopier, facsimile or other electronic transmission (i.e.
“pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
Section 12.14
Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference
Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.15
Acts of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one (1) or more instruments (including instruments in electronic, digital or other machine-readable
form) of substantially similar tenor signed (including signatures in electronic, digital or other machine-readable form) by such Holders
in person or by agent duly appointed in writing (including signatures in electronic, digital or other machine-readable form); 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. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of 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 conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 12.15.
(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 a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in
a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of
such signer’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 which the Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Holder list maintained under Section 2.5 hereunder.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Note.
(e) If
the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the outstanding Notes shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice, consent or waiver by the Holders on such record date
shall be deemed effective unless it shall become effective(pursuant to the provisions of this Indenture, to the extent applicable) not
later than six (6) months after the record date.
Section 12.16
Security Documents.
The Trustee, the Collateral
Agent and the Holders are bound by the terms of the Security Documents and the Intercreditor Agreement.
Section 12.17
[Reserved].
Section 12.18
USA Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time
applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering,
including Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Trustee and Collateral
Agent are required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business
relationship with the Trustee and Collateral Agent. Accordingly, each of the parties agree to provide the Trustee and the Collateral
Agent, upon their request from time to time, such identifying information and documentation as may be available for such party in order
to enable the Trustee and Collateral Agent to comply with Applicable AML Law.
Section 12.19
Force Majeure. In no event shall the Trustee, the Collateral Agent and/or the Agent be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility;
it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry
to resume performance as soon as practicable under the circumstances.
Section 12.20
Calculations. The Company shall be responsible for making all calculations called for under this Indenture or the Notes.
The Company shall make all such calculations in good faith and, absent manifest error, its calculations shall be final and binding on
Holders. The Company shall provide a schedule of its calculations to the Trustee and the Trustee is entitled to rely conclusively upon
the accuracy of such calculations without independent verification. The Trustee shall deliver a copy of such schedule to any Holder upon
the written request of such Holder.
Section 12.21
Electronic Signatures. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures,
including those created or transmitted through a software platform or application, shall be deemed original signatures for purposes of
this Indenture and all other Note Documents and all matters and agreements related thereto, with such facsimile, scanned and electronic
signatures having the same legal effect as original signatures. The parties agree that this Indenture or any other Note Documents
or any instrument, agreement or document necessary for the consummation of the transactions contemplated by this Indenture or the other
Note Documents or related hereto or thereto (including, without limitation, addendums, amendments, notices, instructions, communications
with respect to the delivery of securities or the wire transfer of funds or other communications) (“Executed Documentation”)
may be accepted, executed or agreed to through the use of an electronic signature in accordance with applicable laws, rules and
regulations in effect from time to time applicable to the effectiveness and enforceability of electronic signatures. Any Executed
Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding on all parties
hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature
capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee, Agent and Collateral
Agent act on any Executed Documentation sent by electronic transmission, the Trustee, Agent and Collateral Agent will not be responsible
or liable for any losses, costs or expenses arising directly or indirectly from their reliance upon and compliance with such Executed
Documentation, notwithstanding that such Executed Documentation (a) may not be an authorized or authentic communication of the party
involved or in the form such party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict
with, or be inconsistent with, a subsequent written instruction or communication; it being understood and agreed that the Trustee, Agent
and Collateral Agent shall conclusively presume that Executed Documentation that purports to have been sent by an authorized officer
of a Person has been sent by an authorized officer of such Person. The party providing Executed Documentation through electronic
transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic methods, including, without
limitation, the risk of the Trustee, Agent and Collateral Agent acting on unauthorized instructions and the risk of interception and
misuse by third parties.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the date first above written.
| |
ARROW BIDCO, LLC |
| |
|
|
| |
By: |
/s/
Eric T. Kalamaras |
| |
|
Name: |
Eric T. Kalamaras |
| |
|
Title: |
Chief Financial Officer |
| |
GUARANTORS: |
| |
|
|
RL SIGNOR HOLDINGS, LLC
TARGET LOGISTICS MANAGEMENT, LLC
TLM EQUIPMENT, LLC
TOPAZ HOLDINGS LLC
US IRON BIDCO, LLC |
| |
By: |
/s/
Eric T. Kalamaras |
| |
|
Name: |
Eric T. Kalamaras |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to Indenture]
| |
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee and Collateral Agent |
| |
|
|
| |
By: |
/s/ Rodney Gaughan |
| |
Name: |
Rodney Gaughan |
| |
Title: |
Vice President |
| |
By: |
/s/ Sebastian Hidalgo |
| |
Name: |
Sebastian Hidalgo |
| |
Title: |
Assistant Vice President |
[Signature Page to Indenture]
Exhibit A
[FORM OF
10.75% SENIOR SECURED NOTE DUE 2025]
[Insert Global Note Legend, if applicable pursuant
to the provisions of the Indenture]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.6 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6
OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 TO
SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC OR SUCH OTHER REPRESENTATIVE OF DTC OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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 SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Insert Restricted Notes Legend, if applicable
pursuant to the provisions of the Indenture]
THIS SECURITY (OR ITS PREDECESSOR) 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”). NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED,
DISPOSED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT
OF THE COMPANY THAT, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATEST OF THE ORIGINAL ISSUE DATE HEREOF, THE DATE OF ISSUANCE OF
ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF THIS NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”), SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (A) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF 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), (D) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND THE SECURITIES LAWS OF ANY OTHER JURISDICTION (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY IF THE COMPANY SO REQUESTS), (E) TO THE COMPANY OR ANY SUBSIDIARY THEREOF OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 FOR RESALE OF THIS SECURITY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
[Insert Temporary Regulation S Notes Legend,
if applicable pursuant to the provisions of the Indenture]
THIS SECURITY IS A REGULATION S TEMPORARY GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE GOVERNING THIS NOTE. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE, NO TRANSFER OR
EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN A TRANSFER RESTRICTED NOTE. NO EXCHANGE OF
AN INTEREST IN THIS TEMPORARY GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE REGULATION S GLOBAL NOTE EXCEPT (A) ON OR AFTER
THE TERMINATION OF THE DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) UPON DELIVERY
OF THE OWNER NOTES CERTIFICATION AND THE TRANSFEREE NOTES CERTIFICATION RELATING TO SUCH INTEREST IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE.
UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING
OF THE NOTES, AN OFFER OR SALE OF THE NOTES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A UNDER THE
SECURITIES ACT.
CUSIP Number: [144A: 042728 AB1]/[Reg S: U0424N
AB0]
ISIN: [144A: US042728AB18]/[Reg S: USU0424NAB02]
ARROW BIDCO, LLC
10.75% SENIOR SECURED NOTE DUE 2025
| No. [A-1][S-1] |
$___________ |
Arrow Bidco, LLC, a Delaware limited liability
company (the “Company,” which term includes any successor entities) for value received promises to pay to Cede &
Co. or its registered assigns the principal sum of _____________ UNITED STATES DOLLARS, as may be increased or decreased on the attached
Schedule of Exchanges of Interests in the Global Note, on the Stated Maturity (as defined below), and to pay interest thereon as hereinafter
set forth.
Interest Payment Dates: March 15
and September 15, beginning March 15, 2024
Record Dates: March 1
and September 1
The stated maturity of the Notes (the “Stated
Maturity”) shall be June 15, 2025; provided, however, that, if any of the Existing Notes remain outstanding on
March 15, 2024, then the Stated Maturity of the Notes shall be March 15, 2024 and the Notes shall be repaid on or prior to
such date in an amount equal to 100% of the aggregate principal amount of each Note, plus the Applicable Premium as of, and accrued
and unpaid interest, if any, to but not including such date.
Reference is made to further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Note shall not be entitled
to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed.
| Dated: November 1, 2023 |
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ARROW BIDCO, LLC |
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By: |
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Name: |
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Title: |
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to
in the within-mentioned Indenture:
Dated: November 1, 2023
DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its
individual capacity, but solely as Trustee
(Reverse of Note)
10.75% Senior Secured Note due 2025
Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise indicated.
| (1) | Interest. The Company promises to pay
interest on the principal amount of this Note at the rate of 10.75% per annum from November 1,
2023 until maturity. The Company will pay interest in U.S. Dollars (except as otherwise provided
herein) semiannually in arrears on March 15 and September 15, commencing on March 15,
2024 or if any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”). Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from and
including the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record date referred
to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date, except in the case of the original issuance
of Notes, in which case interest shall accrue from the date of authentication. Interest will
be calculated based on a 360-day year consisting of twelve (12) months of thirty (30) days. |
| (2) | Method of Payment. The Company will
pay interest on the Notes (except defaulted interest) on the applicable Interest Payment
Date to the Persons who are registered Holders of Notes at the close of business on the March 1
and September 1 immediately preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment Date, except
as otherwise provided in the Indenture (as defined below). The Notes shall be payable as
to principal of, premium, if any, interest, at the designated corporate trust office or agency
of the Company maintained for such purpose, or, at the option of the Company, with respect
to Notes represented by definitive Notes; payment may be made by check mailed to the
Holders at their respective addresses set forth in the register of Holders, or, with respect
to Notes represented by global Notes the Holders of which have provided the Company or the
Paying Agent with wire transfer instructions, by wire transfer of immediately available funds
to the account or accounts specified. Principal, premium, if any, interest, shall be considered
paid for all purposes hereunder on the date the Paying Agent, if other than the Company or
a Subsidiary thereof, holds, as of 11:00 a.m. (New York City time), money deposited
by the Company in immediately available funds and designated for and sufficient to pay all
such principal, premium, if any, interest, then due. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts. |
| |
Any
payments of principal of and interest on this Note prior to the Stated Maturity shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.
The amount due and payable at the maturity of this Note shall be payable only upon presentation and surrender of this Note at an office
of the Paying Agent or the Paying Agent’s agent appointed for such purposes. |
| (3) | Paying Agent and Registrar. Initially,
Deutsche Bank Trust Company Americas, the Trustee under the Indenture, shall act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such capacity. |
| (4) | Indenture. The Company issued this
Note under an Indenture, dated as of November 1, 2023 (the “Indenture”),
among the Company, the Guarantors party thereto, the Trustee and the Collateral Agent. The
terms of this Note include those stated in the Indenture. To the extent the provisions of
this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are subject to all such terms, and Holders are referred to the Indenture for a
statement of such terms. The Notes issued on the Issue Date are senior secured Obligations
of the Company limited to $181,446,000 in aggregate principal amount. The Indenture permits
the issuance of Additional Notes subject to compliance with certain conditions. |
| (5) | Guarantees and Security. The payment
of principal and interest on the Notes will be unconditionally guaranteed on a senior secured
basis by the Company and the other Guarantors to the extent set forth in and subject to the
conditions of the Indenture. The Notes will be secured by the Collateral on the terms and
subject to the conditions set forth in the Indenture, any Intercreditor Agreement and the
Security Documents. |
| | (a) | Optional
Redemption on or After September 15, 2024. At any time and from time to time on
and after September 15, 2024, the Company, at its option, may redeem any outstanding
Notes, in whole or in part, upon not less than fifteen (15) nor more than sixty (60) days’
prior written notice to Holders and not less than twenty (20) days’ prior written notice
to the Trustee (or such shorter timeline as the Trustee may agree), at the redemption prices
(expressed as percentages of the principal amount of the Notes to be redeemed) set forth
below, plus accrued and unpaid interest, if any, to but not including the applicable redemption
date (subject to the right of Holders on the relevant record date to receive interest due
on an interest payment date falling on or prior to the redemption date), if redeemed during
the 6-month period beginning on the dates set forth below. |
| Date |
Redemption Price |
| September 15, 2024 |
102.000% |
| March 15, 2025 and thereafter |
101.000% |
| (b) | Optional Redemption at Make-Whole Price.
At any time and from time to time prior to September 15, 2024, upon not less than fifteen
(15) nor more than sixty (60) days’ prior written notice to Holders and not less than
twenty (20) days’ prior written notice to the Trustee (or such shorter timeline as
the Trustee may agree), the Company, at its option, may redeem the Notes, in whole or in
part, at a redemption price equal to 100% of the aggregate principal amount of the Notes
to be redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any,
to but not including the redemption date (subject to the right of Holders on the relevant
record date to receive interest due on an interest payment date falling on or prior to the
redemption date). |
| (c) | Notice of any redemption or any redemption
in respect of the Notes may, at the Company’s discretion, be subject to one or more
conditions precedent. In addition, if such redemption is subject to satisfaction of one or
more conditions precedent, such notice of redemption shall describe each such condition,
and if applicable, shall state that, in the Company’s discretion, the redemption date
may be delayed until such time as any or all such conditions shall be satisfied (or waived),
or such redemption may not occur and such notice, upon written notice to the Trustee, may
be rescinded in the event that any or all such conditions shall not have been satisfied (or
waived) by the redemption date as stated in such notice, or by the redemption date as so
delayed; provided that in no event shall such redemption date be delayed to a
date later than sixty (60) days after the date on which the original redemption notice was
sent. The Company shall provide notice to the Trustee at least one Business Day prior to
the then scheduled redemption date of the delayed redemption date or the rescinding of the
redemption notice. The Company may provide in such notice that payment of the redemption
price and performance of the Company’s obligations with respect to such redemption
may be performed by another Person. |
| (d) | Unless the Company defaults in the payment
of the applicable redemption price, interest shall cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date. |
| (e) | If any Note is redeemed in part only,
a new Note equal in principal amount to the unredeemed portion of the original Note shall
be issued in the name of the Holder thereof upon cancellation of the original Note. Subject
to any conditions, Notes called for redemption become due on the date fixed for redemption.
On and after the redemption date and interest shall cease to accrue on Notes or portions
of the Notes called for redemption. |
| (f) | Notwithstanding any of the foregoing,
notices of redemption may be sent more than sixty (60) days prior to a redemption date if
the notice is issued in connection with a Discharge of this Indenture. |
| (g) | The Company may at any time, and from
time to time, purchase Notes by means other than redemption, whether in open market transactions
or otherwise, subject to compliance with applicable securities laws. |
| (7) | Mandatory Redemption. The Company is
not required to make mandatory redemption or sinking fund payments with respect to the Notes. |
| (9) | Notice of Redemption. Subject to Section 3.3
of the Indenture, notice of redemption will be mailed by first class mail (or, delivered
electronically if held by DTC) at least fifteen (15) days but not more than sixty (60) days
before the redemption date to each Holder whose Notes are to be redeemed at its registered
address and for the Notes registered to DTC, in accordance with DTC’s applicable procedures.
If any Note is to be redeemed in part only, the notice of redemption that relates to that
Note will state the portion of the principal amount thereof to be redeemed. No Notes of $2,000
principal amount or less will be redeemed in part. |
| (10) | Repurchase at Option of Holder. |
| (a) | Upon the occurrence of a Change of Control,
the Company will be required to make an Offer to Purchase (a “Change of Control
Offer”) all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of each Holder’s Notes at a purchase price (the “Purchase Price”)
in cash equal to 101% of the principal amount of the Notes tendered, plus accrued and unpaid
interest to but not including the Purchase Date (subject to the right of Holders on the relevant
record date to receive interest due on an interest payment date falling on or prior to the
Purchase Date). For purposes of the foregoing, a Change of Control Offer shall be deemed
to have been made if (i) within thirty (30) days following a Change of Control, the
Company commences an Offer to Purchase all outstanding Notes at the Purchase Price and (ii) all
Notes validly tendered (and not withdrawn) pursuant to the Offer to Purchase are purchased
in accordance with the terms of such Offer to Purchase. Any Change of Control Offer will
be conducted in accordance with the procedures specified in Section 3.8 of the Indenture. |
| (b) | If the Company or any of its Restricted
Subsidiaries consummates an Asset Sale, any Net Cash Proceeds therefrom that are not applied
or invested as provided in the third paragraph of Section 4.10 of the Indenture within
365 days after the receipt of any Net Cash Proceeds from such applicable Asset Sale will
constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $25.0 million,
within thirty days thereof, the Company will make an Offer to Purchase (“Asset Sale
Offer”) to all Holders and all holders of Pari Passu Debt containing provisions
similar to those set forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets, in each case, equal to the maximum principal amount
of Notes and such other Pari Passu Debt that may be purchased out of the Excess Proceeds.
The offer price in any such Asset Sale Offer will be equal to 100% of the principal amount
of the Notes purchased, plus accrued and unpaid interest to but excluding the date of purchase,
and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited
by the Indenture and such remaining amount shall not be added to any subsequent Excess Proceeds
for any purpose under the Indenture. If the aggregate principal amount of Notes and such
other Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds,
the Trustee will select the Notes and the Company will select such other Pari Passu Debt
to be purchased on a pro rata basis as between the Notes and Pari Passu Debt. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Any Asset Sale Offer will be conducted in accordance with the procedures specified in Section 3.8
of the Indenture. |
| (c) | Holders that are the subject of a Change
of Control Offer or an Asset Sale Offer (each, an “Offer to Purchase”),
will receive notice of an Offer to Purchase from the Company prior to any related Purchase
Date and may elect to have such Notes purchased by completing the form titled “Option
of Holder to Elect Purchase” appearing below. |
| (11) | Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of the Notes may be registered and the
Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed
in part. Also, the Company and the Registrar shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning at the opening of
fifteen (15) days before the day of any mailing of a notice of redemption under Section (6) hereof
and ending at the close of business on the day of mailing, (B) to register the transfer
of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest Payment Date. |
| (12) | Persons Deemed Owners. The registered
Holder of a Note may be treated as its owner for all purposes. |
| (13) | Discharge and Defeasance. Subject
to the conditions set forth in the Indenture, the Company and the Guarantors at any time
shall be entitled to terminate some or all of their obligations under the Indenture and the
Notes or the Note Guarantees, as applicable, if the Company irrevocably deposits with the
Trustee, in trust, for the benefit of the Holders, cash in U.S. Dollars, non-callable U.S.
Government Obligations, or a combination thereof, for the payment of principal of, premium,
if any, and interest on the outstanding Notes to redemption or maturity, as the case may
be; provided, that upon any redemption that requires the payment of the Applicable
Premium, the amount deposited shall be sufficient for purposes of the Indenture to the extent
that an amount is deposited with the Trustee equal to the Applicable Premium calculated as
of the date of the notice of redemption, with any deficit as of the date of redemption (any
such amount, the “ Applicable Premium Deficit”) only required to be deposited
with the Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall
be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with
the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium
Deficit shall be applied toward such redemption). |
| (14) | Amendment, Supplement and Waiver.
The Indenture, the Notes or any Note Document may be amended or supplemented as provided
in the Indenture. |
| (15) | Defaults and Remedies. The Events
of Default relating to the Notes are defined in Section 6.1 of the Indenture. If an
Event of Default (other than an Event of Default specified in Section 6.1(8) of
the Indenture with respect to the Company) occurs and is continuing, then and in every such
case, the Trustee or the Holders of not less than 30% in aggregate principal amount of the
outstanding Notes may declare the principal amount of the Notes, premium, if any, and any
accrued and unpaid interest on the Notes to be due and payable immediately by a notice in
writing to the Company (and to the Trustee if given by Holders); provided, however,
that after such acceleration, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of the outstanding Notes may rescind
and annul such acceleration if (i) all Events of Default, other than the nonpayment
of accelerated principal of or interest on the Notes, have been cured or waived as provided
in the Indenture and (ii) such rescission or annulment would not conflict with any decree
of judgment of a court of competent jurisdiction. |
|
In the event of a declaration of acceleration of the Notes
because an Event of Default described in Section 6.1(f) of the Indenture has occurred and is continuing, the declaration
of acceleration of the Notes shall be automatically rescinded and annulled if the event of default or payment default triggering
such Event of Default pursuant to Section 6.1(f) shall be remedied or cured by the Company or such Restricted Subsidiary
or waived by the holders of the relevant Debt within thirty (30) Business Days after the declaration of acceleration with respect
thereto and if the rescission and annulment of the acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction obtained by the Trustee for the payment of amounts due on the Notes. |
|
If an Event of Default specified in
Section 6.1(8) occurs with respect to the Company, the principal amount of and any accrued and unpaid interest on the
Notes then outstanding shall ipso facto become immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Trustee may withhold from Holders notice of any Default (except Default in payment of principal
of, premium, if any, and interest on, any Note) if the Trustee determines that withholding notice is in the interests of the
Holders. |
| (16) | Trustee Dealings with the Company. The
Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights
it would have if it were not Trustee. |
| (17) | No Recourse Against Others. No past,
present or future director, officer, employee, general or limited partner, incorporator or
stockholder of the Company or any of its Subsidiaries, as such, will have any personal liability
for any obligations of the Company or any Guarantor by reason of his, her or its status as
such director, officer, employee, stockholder, general partner, limited partner or incorporator,
under the Note Documents, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for the issuance
of the Notes. Such waiver may not be effective to waive liabilities under the U.S. federal
securities laws or other corporate laws, and it is the view of the SEC that such a waiver
is against public policy. |
| (18) | Authentication. This Note shall not
be valid until authenticated by the signature of the Trustee or an authenticating agent. |
| (19) | Abbreviations. Customary abbreviations
may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act). |
| (20) | CUSIP, ISIN Numbers. Pursuant
to a recommendation promulgated by the Committee on Uniform Security Identification Procedures,
the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP, ISIN
or other similar numbers in notices of redemption as a convenience to the Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other identification numbers
placed thereon. |
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Arrow Bidco, LLC
9320 Lakeside Boulevard, Suite 300
The Woodlands, TX 77381
Attention: Heidi D. Lewis
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
(Insert assignee’s legal name and soc. sec.
or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ________________________________________to
transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date: __________
|
(Sign exactly as your name appears on the face of this Note) |
| Signature guarantee: |
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(Signature must be guaranteed by a participant in a recognized
signature guarantee medallion program) |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased
by the Company pursuant to Section 4.10 (Asset Sales) or 4.14 (Change of Control) of the Indenture, as applicable, check the box
below:
¨
Section 4.10 ¨ Section 4.14
If you want to elect to have only part of the
Note purchased by the Company pursuant to Section 4.10 or 4.14 of the Indenture, as applicable, state the amount you elect to have
purchased: $
| Date: ___________________ |
Your Signature: |
|
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(Sign exactly
as your name appears on the Note) |
Tax Identification No.:
| Signature
guarantee: |
|
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(Signature
must be guaranteed by a participant in a recognized signature guarantee medallion program) |
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER RESTRICTED NOTES BY A PERSON OTHER THAN THE COMPANY
Arrow Bidco, LLC
9320 Lakeside Boulevard, Suite 300
The Woodlands, TX 77381
Attention: Heidi D. Lewis
DB Services Americas, Inc.
5022 Gate Parkway, Suite 200
Jacksonville, FL 32256 USA
Attention: Transfer Department
| Re: | Arrow Bidco, LLC
10.75% Senior Secured Note due 2025
CUSIP # [042728 AB1]/[U0424N AB0] |
Reference is hereby made to that certain Indenture,
dated November 1, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among
Arrow Bidco, LLC (the “Company”), the Guarantors party thereto, the Trustee and the Collateral Agent. Capitalized
terms used but not defined herein shall have the meanings set forth in the Indenture.
__________________________ (the “Transferor”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein in the principal amount of $__________________ in
such Note[s] held in (check applicable space) __________________ book-entry or _____________ definitive form by the
undersigned.
The Transferor ___________________ (check one
(1) box below):
| ¨ |
hereby requests the Registrar
to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered
form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion
thereof indicated above), in accordance with Section 2.6 of the Indenture; or |
| ¨ |
hereby requests the Trustee
to exchange or register the transfer of a Note or Notes to _____________ (transferee). |
In connection with any transfer of any of the
Notes evidenced by this certificate occurring prior to the expiration of the periods referred to in Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”), the Transferor confirms that such Notes are being transferred in accordance
with its terms:
CHECK ONE (1) BOX
BELOW:
| (1) |
¨ | to
the Company or a subsidiary thereof; or |
| (2) |
¨ | inside
the United States to a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act (“Rule 144A”)) that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A;
or |
| (3) |
¨ | outside
the United States in an offshore transaction to a person other than a “U.S. person”
within the meaning of Regulation S under the Securities Act, in compliance with Rule 904
thereunder. |
Unless one (1) of the boxes is checked,
the Registrar will refuse to register any of the Note[s] evidenced by this certificate in the name of any person other than the registered
Holder thereof; provided that if box (2) or (3) is checked, the Company or the Trustee may require, prior to registering
any such transfer of the Note[s], in its sole discretion, such legal opinions, certifications and other information as the Trustee or
the Company reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act.
| Signature guarantee: |
|
| |
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that
it is purchasing this 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 “qualified institutional buyer” 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 the
undersigned 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 the undersigned’s foregoing representations in order to claim the exemption from registration provided
by Rule 144A.
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[Name of Transferee] |
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| Dated: |
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NOTICE: To be executed by an executive officer |
SCHEDULE OF EXCHANGES OF 10.75% SENIOR SECURED NOTES DUE 2025
The following exchanges of a part of this Global
Note for other 10.75% Senior Secured Notes due 2025 have been made:
| | Date
of Exchange | | |
Amount of
Decrease in
Principal Amount
of this Global
Note | |
Amount of
Increase in
Principal Amount
of this Global
Note | |
Principal Amount
of this Global
Note Following
Such Decrease (or
Increase) | |
Authorized
Officer of Trustee
or Custodian |
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Exhibit B
[FORM OF
CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
Arrow Bidco, LLC
9320 Lakeside Boulevard, Suite 300
The Woodlands, TX 77381
Attention: Heidi D. Lewis
DB Services Americas, Inc.
5022 Gate Parkway, Suite 200
Jacksonville, FL 32256 USA
Attention: Transfer Department
| Re: | Arrow Bidco, LLC (the “Company”)
10.75% Senior Secured Notes due 2025 (the “Notes”) |
Ladies and Gentlemen:
Reference is hereby made to that certain Indenture,
dated November 1, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among
Arrow Bidco, LLC (the “Company”), the Guarantors party thereto, the Trustee and the Collateral Agent. Capitalized
terms used but not defined herein shall have the meanings set forth in the Indenture.
__________________________ (the “Transferor”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein. In connection with the Transferor’s proposed
sale of $__________ aggregate principal amount at maturity of the Note[s], the Transferor hereby certifies that such transfer is being
effected pursuant to and in accordance with Rule 144A (“Rule 144A”) under the United States Securities Act
of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the Note[s]
are being transferred to a person that the Transferor reasonably believes is purchasing the Note[s] for its own account, or for one (1) or
more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such
Note[s] are being transferred in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred Note[s] will be subject to the restrictions on
transfer enumerated in the Restricted Notes Legend printed on the QIB Global Note and in the Indenture and the Securities Act.
The addressees of this letter are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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Authorized Signature |
| Signature guarantee: |
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(Signature must be guaranteed by a
participant in a recognized signature guarantee medallion program) |
Exhibit C
[FORM OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
Arrow Bidco, LLC
9320 Lakeside Boulevard, Suite 300
The Woodlands, TX 77381
Attention: Heidi D. Lewis
DB Services Americas, Inc.
5022 Gate Parkway, Suite 200
Jacksonville, FL 32256 USA
Attention: Transfer Department
| Re: | Arrow Bidco, LLC (the “Company”)
10.75% Senior Secured Notes due 2025 (the “Notes”) |
Ladies and Gentlemen:
Reference is hereby made to that certain Indenture,
dated November 1, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among
Arrow Bidco, LLC (the “Company”), the Guarantors party thereto, the Trustee and the Collateral Agent. Capitalized
terms used but not defined herein shall have the meanings set forth in the Indenture.
__________________________ (the “Transferor”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein. In connection with our proposed sale of $________
aggregate principal amount at maturity of the Note[s], the Transferor confirms that such sale has been effected pursuant to and in accordance
with Regulation S (“Regulation S”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, the Transferor represents that:
| (1) | the transfer of the Note[s] was not made to
a person in the United States; |
| (2) | either (a) at the time the buy order
was originated, the transferee was outside the United States or the Transferor and any person
acting on the Transferor’s behalf reasonably believed that the transferee was outside
the United States or (b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor any person acting
on the Transferor’s behalf knows that the transaction has been prearranged with a buyer
in the United States; |
| (3) | no directed selling efforts have been made
in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and |
| (4) | the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act. |
In addition, if the sale is made during a restricted
period and the provisions of Rule 903(b) or Rule 904(b) of Regulation S are applicable thereto, the Transferor confirms
that such sale has been made in accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may
be. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred Note[s] will be subject
to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Regulation S Global Note and in the Indenture
and the Securities Act.
The addressees of this letter are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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Authorized Signature |
| Signature guarantee: |
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(Signature must be guaranteed by a
participant in a recognized signature guarantee medallion program) |
Exhibit D
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY SUBSEQUENT
GUARANTORS
ARROW BIDCO, LLC
as Issuer and
THE GUARANTORS PARTY HERETO
————————————————
10.75% SENIOR SECURED NOTES DUE 2025
————————————————
SUPPLEMENTAL INDENTURE
DATED AS OF [ ]
————————————————
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee and Collateral Agent
This SUPPLEMENTAL INDENTURE, dated as of [ ],
is by and among Arrow Bidco, LLC, a Delaware limited liability company (the “Company”), each of the parties identified
under the caption “Guarantors” on the signature page hereto (the “Guarantors”), Deutsche Bank Trust
Company Americas, as trustee (in such capacity and not in its individual capacity, the “Trustee”) and Deutsche Bank
Trust Company Americas, as collateral agent (in such capacity and not in its individual capacity, the “Collateral Agent”).
RECITALS
WHEREAS, the Company, certain guarantors party
thereto, the Trustee and the Collateral Agent entered into an Indenture, dated as of November 1, 2023 (the “Indenture”),
providing for the issuance of $181,446,000 in principal amount of 10.75% Senior Secured Notes due 2025 (the “Notes”);
WHEREAS, Section 9.1(2) of the Indenture
provides that the Company, the Guarantors, the Trustee and the Collateral Agent may supplement the Indenture in order to add Guarantors
pursuant to Sections 4.17 and 11.8 thereof, without the consent of the Holders; and
WHEREAS, all acts and procedures prescribed by
the Indenture to make this Supplemental Indenture a legally valid and binding instrument on the Company, the Guarantors, the Trustee
and the Collateral Agent, in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in compliance with the provisions
of the Indenture and in consideration of the above premises, the Company, the Guarantors, the Trustee and the Collateral Agent covenant
and agree for the equal and proportionate benefit of the respective Holders of the Notes as follows:
| (1) | This Supplemental Indenture is supplemental
to the Indenture and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes. |
| (2) | This Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company, the Guarantors, the Trustee
and the Collateral Agent. |
| (3) | From this date, by executing this Supplemental
Indenture, the Guarantors whose signatures appear below are subject to the provisions of
the Indenture to the extent applicable. |
| (4) | Except as specifically modified herein, the
Indenture and the Notes are in all respects ratified and confirmed (mutatis mutandis)
and shall remain in full force and effect in accordance with their terms with all capitalized
terms used herein without definition having the same respective meanings ascribed to them
as in the Indenture. |
| (5) | Except as otherwise expressly provided herein,
no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed,
by the Trustee or the Collateral Agent by reason of this Supplemental Indenture. This Supplemental
Indenture is executed and accepted by the Trustee and the Collateral Agent subject to all
the terms and conditions set forth in the Indenture with the same force and effect as if
those terms and conditions were repeated at length herein and made applicable to the Trustee
and the Collateral Agent with respect hereto. |
| (6) | No past, present or future director, officer,
employee, incorporator, stockholder, partner, member or joint venturer of the Company or
any Guarantor, as such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture
or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes. |
| (7) | NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF
THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE. |
| (8) | The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all of such executed
copies together shall represent the same agreement. Delivery of an executed counterpart of
a signature page to this Supplemental Indenture by telecopier, facsimile or other electronic
transmission (i.e. “pdf” or “tif”) shall be effective as delivery
of a manually executed counterpart thereof. |
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, all as of the date first written above.
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ARROW BIDCO, LLC |
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By: |
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Name: |
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Title: |
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[GUARANTORS] |
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By: |
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Name: |
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Title: |
|
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[ADDITIONAL GUARANTORS] |
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By: |
|
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|
Name: |
|
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|
Title: |
|
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee and Collateral Agent |
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By: |
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Name: |
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Title: |
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Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE,
dated as of November 1, 2023 (this “Supplemental Indenture”), by and among ARROW BIDCO, LLC, a Delaware limited
liability company (the “Issuer”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee
(in such capacity, the “Trustee”) and as collateral agent (in such capacity, the “Collateral Agent”)
under the Indenture referred to below.
W I T N E S S E T H :
WHEREAS, the Issuer, the Guarantors,
the Trustee and the Collateral Agent have heretofore executed the indenture, dated as of March 15, 2019 (as amended, supplemented
or otherwise modified from time to time, the “Indenture”), providing for the issuance of the Issuer’s 9.50% Senior
Secured Notes due 2024 (the “Notes”), initially in the aggregate principal amount of $340,000,000;
WHEREAS, pursuant to Section 9.2
of the Indenture, the Issuer and the Trustee may amend the Indenture in certain cases as specified therein with the consent of the Holders
of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes) (the “General Requisite Consents”);
WHEREAS, Sections 9.2 and
10.4 of the Indenture allow the release of all or substantially all of the Collateral from the Note Liens securing the Notes (the “Collateral
Release”) with the consent of the Holders of at least 66 2/3% in aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) (the “Collateral Release
Requisite Consents” and, together with the General Requisite Consents, the “Requisite Consents”);
WHEREAS, the Issuer distributed
a Confidential Offering Memorandum and Consent Solicitation Statement, dated September 29, 2023 (the “Offering Memorandum”),
to the Holders of the Notes, in order to, among other things, and subject to the terms and conditions set forth in the Offering Memorandum,
solicit consents (the “Consents”) from Holders to certain amendments to the Indenture described in the Offering Memorandum
(the “Proposed Amendments”), including the Collateral Release;
WHEREAS, the Holders of approximately
86.6% in aggregate principal amount of the Notes outstanding have validly tendered Consents and not validly withdrawn their Consents to
the adoption of all of the Proposed Amendments effected by this Supplemental Indenture and to the Collateral Release in accordance with
the provisions of the Indenture, and evidence of such Consents has been provided by the Issuer to the Trustee;
WHEREAS, having received the
Requisite Consents pursuant to Sections 9.2 and 10.4 of the Indenture, each as evidenced by the Certificate of D.F. King provided to the
Trustee and attached to the Officer’s Certificate delivered to the Trustee in connection with this Supplemental Indenture, the Issuer,
the Trustee and the Collateral Agent desire to amend the Indenture;
WHEREAS, in accordance with
the Indenture, the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel with respect to this Supplemental
Indenture on the date hereof;
WHEREAS, the Issuer has complied
with all conditions precedent provided for in the Indenture relating to this Supplemental Indenture; and
WHEREAS, the Issuer has requested
that the Trustee and the Collateral Agent execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer,
the Trustee and the Collateral Agent mutually covenant and agree as follows:
1. Defined
Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein
as therein defined, except that the term “Holders” in this Supplemental Indenture shall refer to the term “Holders”
as defined in the Indenture. The words “herein,” “hereof” and “hereby” and other
words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular
Section hereof.
2. Effectiveness.
This Supplemental Indenture shall become effective immediately upon its execution and delivery by the Issuer, the Trustee and the Collateral
Agent (subject to the requirements for amendments and/or supplemental indentures under the Indenture and Security Documents, as applicable);
provided that the amendments to the Indenture set forth herein shall not be operative until all of the Notes that have been tendered
and accepted for exchange have been paid for in accordance with the terms of the Offering Memorandum.
3. Amendment.
The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related
thereto in their entirety, except to the extent otherwise provided below, and these Sections, clauses and definitions shall be of no further
force and effect, and the words “[INTENTIONALLY DELETED]” shall be inserted, in each case, in place of the deleted text:
| · | Section 4.2 (Maintenance of Office or Agency) |
| · | Section 4.4 (Compliance Certificate) |
| · | Section 4.6 (Stay, Extension and Usury Laws) |
| · | Section 4.7 (Limitation on Restricted Payments) |
| · | Section 4.8 (Limitation on Dividends and Other Payment Restrictions Affected Restricted Subsidiaries) |
| · | Section 4.9 (Limitation on the Incurrence of Debt) |
| · | Section 4.10 (Limitation on Asset Sales) |
| · | Section 4.11 (Limitation on Transactions with Affiliates) |
| · | Section 4.12 (Limitation on Liens) |
| · | Section 4.13 (Limitation on Sale and Leaseback Transactions) |
| · | Section 4.14 (Offer to Purchase upon a Change of Control) |
| · | Section 4.15 (Maintenance of Properties, Corporate Existence and Insurance) |
| · | Section 4.16 (Limited Condition Transactions) |
| · | Section 4.17 (Additional Note Guarantees) |
| · | Section 4.18 (Limitation on Creation of Unrestricted Subsidiaries) |
| · | Section 4.19 (Creation and Perfection of Certain Security Interests After the Issue Date) |
| · | Section 4.20 (Further Assurances) |
| · | Section 4.21 (Suspension of Covenants) |
| · | Section 5.1 (Consolidation, Amalgamation, Merger, Conveyance, Transfer or Lease)—deleting
clauses (ii) and (v) specifying certain conditions to consolidations, mergers, conveyances or other disposals of all or substantially
all of the Issuer’s or any subsidiary guarantor’s property and assets |
| · | Section 6.1 (Events of Default)—deleting clauses (3), (4), (5), (6), (7), (8)(a)-(e) and
(9) relating to covenant or warranty breaches, cross-acceleration rights, defaults related to certain bankruptcy events and judgments |
| · | Section 8.4 (Conditions to Legal Defeasance or Covenant Defeasance)—deleting clauses
(2), (3), (4) and (5) specifying certain conditions to legal defeasance and covenant defeasance |
4. Security
Documents. Notwithstanding anything to the contrary, any amendments to, restatements of, or termination or release of, as applicable,
the Security Documents and any related documents and filings, including, but not limited to, any acknowledgements, side-letters, terminations,
releases and other agreements, in order to effectuate or evidence the Collateral Release shall be permitted under the Indenture. The Collateral
Agent hereby acknowledges and agrees that all of the Liens on the Collateral securing the Notes Obligations pursuant to the Indenture
or the Security Documents are automatically released and terminated.
5. Ratification
of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all of the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered
shall be bound hereby. The rights, protections and indemnities afforded the Trustee and Collateral Agent under the Indenture and Security
Documents shall apply to any action (or inaction) taken hereunder or in connection with the transactions contemplated herewith.
6. Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
7. Trustee
Makes No Representation. The Trustee and Collateral Agent make no representation as to the validity or sufficiency of this Supplemental
Indenture or as to the statements made in the recitals.
8. Successors.
All agreements of the Issuer in this Supplemental Indenture shall bind its successors, except as otherwise provided in this Supplemental
Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
9. Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by telecopier,
facsimile or other electronic transmission (i.e., a “pdf” or “tif”) (including any electronic signature complying
with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other
applicable law) shall be effective as delivery of a manually executed counterpart thereof.
10. Severability
Clause. In case any provision in this Supplemental Indenture 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.
11. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this
Supplemental Indenture to be duly executed as of the date first written above.
| |
ARROW
BIDCO, LLC |
| |
|
| |
By: |
/s/ Eric T. Kalamaras |
| |
|
Name: |
Eric T. Kalamaras |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to First Supplemental
Indenture]
| |
DEUTSCHE
BANK TRUST COMPANY AMERICAS, |
| |
as
Trustee and Collateral Agent |
| |
|
| |
By: |
/s/ Sebastian Hidalgo |
| |
Name: |
Sebastian Hidalgo |
| |
Title: |
Assistant Vice President |
| |
|
| |
By: |
/s/ Rodney Gaughan |
| |
Name: |
Rodney Gaughan |
| |
Title: |
Vice President |
[Signature Page to First Supplemental
Indenture]
Exhibit 99.1
Arrow Bidco, LLC Announces Settlement of the
Exchange Offer and Consent Solicitation in respect of its Senior Secured Notes; Further Optimizing Financial Flexibility and Liquidity
Profile
THE WOODLANDS, Texas—November 1, 2023—Arrow Bidco,
LLC (the “Issuer”), a Delaware limited liability company and an indirect subsidiary of Target Hospitality Corp. (“Target
Hospitality”, “Target”, or the “Company”) (NASDAQ: TH), today announced the settlement of the previously
announced offer to exchange (the “Exchange Offer”) any and all of its outstanding 9.50% Senior Secured Notes due 2024 (the
“Existing Notes”) for cash and for the Issuer’s new 10.75% Senior Secured Notes due 2025 (the “New Notes”)
and solicitation of consents to certain proposed amendments to the indenture governing the Existing Notes (the “Consent Solicitation).
The Exchange Offer expired at 5:00 p.m., New York City time, on October 30,
2023 (the “Expiration Date”). Approximately $181.4 million of Existing Notes were validly tendered and not validly withdrawn
as of the early exchange date and withdrawal deadline, which expired at 5:00 p.m., New York City time, on October 13, 2023, with
no additional valid tenders of Existing Notes received thereafter. In total, approximately $181.4 million Existing Notes were exchanged
by the Issuer on November 1, 2023 (the “Settlement Date”).
The completion of the Exchange Offer is a continuation of the Company’s
focused commitment to strengthening its balance sheet, while optimizing financial flexibility. Target anticipates continued progress towards
achieving a net-debt free balance sheet, with total available liquidity in excess of $315 million by year-end 2023.
On the Settlement Date, the Issuer issued approximately $181.4 million
in New Notes and paid approximately $2.7 million in cash to eligible holders whose Existing Notes were accepted for exchange in the Exchange
Offer. Holders whose Existing Notes were accepted for exchange also received a cash payment representing interest that has accrued from
the most recent interest payment date in respect of the Existing Notes up to, but not including, the Settlement Date.
BofA Securities, Inc served as lead dealer manager, Deutsche Bank
Securities Inc. served as senior co-dealer manager, TCBI Securities, Inc. served as co-dealer manager and Allen & Overy
LLP served as legal counsel to the Issuer on this transaction. Latham & Watkins LLP served as legal counsel to the dealer managers.
D.F. King & Co., Inc. served as the exchange agent on this transaction.
This press release is for informational purposes only and is neither
an offer to buy nor a solicitation of an offer to sell any of the New Notes or any other securities. The New Notes have not been and will
not be registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption
from the registration requirements. The New Notes have not been approved or disapproved by any regulatory authority, nor has any such
authority passed upon the accuracy or adequacy of the offering circular relating to the Exchange Offers and the New Notes.
Forward-Looking Statements
Certain statements made in this release are “forward looking
statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform
Act of 1995. When used in this press release, the words “estimates,” “projected,” “expects,” “anticipates,”
“forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,”
“should,” “future,” “propose” and variations of these words or similar expressions (or the negative
versions of such words or expressions) are intended to identify forward-looking statements. These forward-looking statements are not guarantees
of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important
factors, many of which are outside the Issuer’s control, that could cause actual results or outcomes to differ materially from those
discussed in the forward-looking statements. More information about potential risks and uncertainties that could materially affect our
business and results of operations is included in the “Risk Factors” and “Forward-Looking Statements” sections
of Target Hospitality Corp.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, filed with the Securities
and Exchange Commission (“SEC”) on August 9, 2023 and Target Hospitality Corp.’s Annual Report on Form 10-K
for the year ended December 31, 2022, filed with the SEC on March 10, 2023, as well as other risks and uncertainties specified
in the “Risk Factors” section of the Offering Memorandum. You should not place undue reliance on forward-looking statements.
Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update them publicly or to revise
them in light of new information or future events.
About the Issuer
The Issuer is a Delaware limited liability company that provides workforce
housing and hospitality solutions, as well as transportation and logistics services in the United States. It is a direct wholly-owned
subsidiary of Topaz Holdings.
Contacts:
Mark Schuck
(832) 702 – 8009
ir@targethospitality.com
v3.23.3
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|
Oct. 31, 2023 |
| Document Information [Line Items] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Oct. 31, 2023
|
| Current Fiscal Year End Date |
--12-31
|
| Entity File Number |
001-38343
|
| Entity Registrant Name |
TARGET HOSPITALITY CORP.
|
| Entity Central Index Key |
0001712189
|
| Entity Tax Identification Number |
98-1378631
|
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DE
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9320 Lakeside Blvd.
|
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Suite 300
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The
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TX
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77381
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| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Details
| Name: |
us-gaap_StatementClassOfStockAxis=th_CommonStockParValue0.0001PerShareMember |
| Namespace Prefix: |
|
| Data Type: |
na |
| Balance Type: |
|
| Period Type: |
|
|
| X |
- Details
| Name: |
us-gaap_StatementClassOfStockAxis=th_WarrantsToPurchaseCommonStockMember |
| Namespace Prefix: |
|
| Data Type: |
na |
| Balance Type: |
|
| Period Type: |
|
|
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