TRONOX INCORPORATED AND EACH OF THE GUARANTORS PARTY HERETO 6.500% SENIOR SECURED NOTES DUE 2025

Exhibit 4.1

TRONOX INCORPORATED

 

AND EACH OF THE GUARANTORS PARTY HERETO

 

6.500% SENIOR SECURED NOTES DUE 2025

 

 

Dated as of May 1, 2020

 

Wilmington Trust, National Association,

 

as Trustee and Collateral Agent

TABLE OF CONTENTS

 

INDENTURE dated as of May 1, 2020 among Tronox Incorporated, a Delaware corporation, as Issuer, each of the Guarantors (as defined herein) and Wilmington Trust, National Association, as trustee and collateral agent.

 

The Issuer, the Guarantors, the Trustee and the Collateral Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the 6.500% Senior Secured Notes due 2025 (the “Notes”):

 

ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE

 

 

“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

 

“2025 Notes” means the $450.0 million aggregate principal amount of 5.750% senior notes due 2025 issued by Tronox Finance plc on September 22, 2017.

 

“2026 Notes” means the $615.0 million aggregate principal amount of 6.500% senior notes due 2026 issued by the Issuer on April 6, 2018.

 

“ABL Facility” means the global senior secured asset-based syndicated revolving credit facility entered into on September 22, 2017 among Holdings, certain of its subsidiaries and ▇▇▇▇▇ Fargo Bank, National Association, acting as the initial administrative agent for the lenders thereunder, as amended, restated, amended and restated, otherwise modified, refinanced or replaced from time to time.

 

“ABL Facility Agent” means the administrative agent under the ABL Facility, and its successors, replacements and/or assigns in such capacity.

 

“ABL Intercreditor Agreement” means the ABL Intercreditor Agreement, dated as of September 22, 2017, among ▇▇▇▇▇ Fargo Bank, National Association, Bank of America, N.A., the Collateral Agent, each Additional Term Agent from time to time party thereto, the Issuer and the Guarantors, as amended, restated, amended and restated, otherwise modified, refinanced or replaced from time to time.

 

“ABL Obligations” means the indebtedness and other Obligations (including any bank product obligations) in respect of the ABL Facility, and all other “Secured Obligations” as defined in the ABL Facility.

 

“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture in accordance with Section 2.02 hereof, as part of the same series as the Initial Notes.

 

“Adjusted Treasury Rate” means with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, plus 0.50%.

 

“affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative of the foregoing.

“Agent” means any Registrar, co-registrar, Collateral Agent, Paying Agent or additional paying agent.

 

“Agreed Security Principles” means those certain agreed security principles set out in Exhibit E hereto.

 

“Applicable Collateral Agent” has the meaning assigned to such term in the Pari Passu Intercreditor Agreement.

 

“Applicable Premium” means in connection with the optional redemption of any Note on any date fixed for a redemption, as determined by Holdings, the greater of:

 

 

 

in each case, as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate. The Trustee shall have no duty to calculate or verify the calculations of the Applicable Premium.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

 

“Attributable Debt” means, in the context of a Sale and Lease-Back Transaction, the amount that Holdings determines in good faith to be the present value, discounted at the interest rate implicit in the lease involved in such Sale and Lease-Back Transaction, of the lessee’s obligation under the lease for rental payments during the remaining term of such lease, as it may be extended. For purposes of this definition, any amounts lessee must pay, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or any amounts lessee must pay under the lease contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges are not included in the determination of lessee’s obligations under the lease.

 

“Australian PPS Law” means (a) the Personal Property Securities ▇▇▇ ▇▇▇▇ (Cth) of Australia and any regulation made at any time under the Personal Property Securities ▇▇▇ ▇▇▇▇ (Cth) of Australia, including the Personal Property Securities Regulations 2010 (Cth) of Australia (each as amended from time to time); and (b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in clause (a).

 

“Bank Product Obligations” means obligations under any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

 

“beneficial owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “beneficially owns,” “beneficially owned” and “beneficial ownership” have corresponding meanings.

 

“Blocked Reinvestment Account” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

“Board of Directors” means, with respect to any Person, the board of directors or board of managers or managing members, as the case may be, or any committee thereof duly authorized to act on behalf of such board, or the board or committee of such Person serving a similar function.

 

“Business Day” means any day other than a Legal Holiday.

 

“Capital Stock” means:

 

 

 

 

 

but excluding any debt securities convertible or exchangeable into such equity.

 

“CFC” means a Foreign Subsidiary treated as a “controlled foreign corporation” within the meaning of Section 957 of the Code that is owned by any Domestic Subsidiary of Holdings (other than the Issuer).

 

“Change of Control” means the occurrence of any of the following:

 

 

 

In addition, for the avoidance of doubt, transactions among Holdings and its Subsidiaries (other than transactions under clause (3) above) shall not constitute a “Change of Control” for purposes of this definition.

 

Notwithstanding the foregoing, a transaction in which the Issuer or a parent entity of the Issuer becomes a subsidiary of a Future Parent Entity shall not constitute a Change of Control if (a) the equityholders of the Issuer or such parent entity immediately prior to such transaction beneficially own, directly or indirectly through one or more intermediaries, at least a majority of the total voting power of the Voting Stock of the Issuer or such Future Parent Entity immediately following the consummation of such transaction, or (b) immediately following the consummation of such transaction, no Person, other than a Permitted Holder, the Future Parent Entity or any subsidiary of the Future Parent Entity, beneficially owns, directly or indirectly through one or more intermediaries, more than 50% of the voting power of the Voting Stock of the Issuer or the Future Parent Entity.

 

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Ratings Event.

 

“Clearstream” means Clearstream Banking, S.A.

 

“Collateral” means all property subject or purported to be subject, from time to time, to a Lien under any Security Document, including the Current Asset Collateral and the Fixed Asset Collateral, but excluding in each case any Excluded Assets and subject to the Agreed Security Principles and Section 12.01(d).

 

“Collateral Agent” means Wilmington Trust, National Association in its capacity as “Collateral Agent” under this Indenture and under the Security Documents and any successor thereto in such capacity.

 

“Commodity Agreement” means any commodity futures contract, commodity option or other similar agreement or arrangement entered into by Holdings or any of its Restricted Subsidiaries designed to protect Holdings or any of its Restricted Subsidiaries against fluctuations in the price of commodities actually at that time used in the ordinary course of business of Holdings or its Restricted Subsidiaries.

 

“Comparable Treasury Issue” means the United States Treasury Security with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of comparable market data)) most nearly equal to the period from the redemption date to May 1, 2022; provided that, if such period is less than one year, the United States Treasury Security with a constant maturity of one year will be used.

 

“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

plus

 

less

 

 

 

 

 

in each case, as determined on a consolidated basis for Holdings and the Restricted Subsidiaries in accordance with GAAP; provided that:

 

 

 

“Consolidated First Lien Net Debt” means the amount of Consolidated Total Net Debt (x) in respect of the Notes and (y) that is secured by a Lien on any assets or property of Holdings and its Restricted Subsidiaries on an equal priority basis (but without regard to the control of remedies) with Liens securing the Notes Obligations (including, as of the date hereof, the Credit Facilities).

 

“Consolidated Net Income” means, for any period, the net income (loss) of Holdings and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include the amount of proceeds received or, so long as Holdings has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period), due from reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other investment or any disposition of any asset permitted hereunder.

 

“Consolidated Total Debt” means, as of any date of determination, the outstanding principal amount of all third party indebtedness for borrowed money (including purchase money indebtedness), unreimbursed drawings under letters of credit to the extent not reimbursed within one business day following the drawing thereof, Finance Lease Obligations and third party indebtedness obligations evidenced by bonds, debentures, notes or similar instruments, in each case of the Issuer and the guarantors on such date, on a consolidated basis and determined in accordance with GAAP (but without giving effect to any election to value any such indebtedness at “fair value”, or any other accounting principle that results in any such indebtedness (other than zero coupon indebtedness) being reflected as an amount below the stated principal amount thereof and excluding, in any event, the effects of any discounting of indebtedness resulting from the application of acquisition method accounting in connection with any acquisition or other investment); provided that Permitted Receivables Financings and Non-Finance Lease Obligations shall not constitute indebtedness of the type included in the definition of Consolidated Total Debt.

“Consolidated Total Net Debt” means, as of any date of determination, (a) Consolidated Total Debt as of such date, minus (b) (x) the aggregate amount of unrestricted cash and cash equivalents owned by Holdings and the Restricted Subsidiaries, as reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP but without giving Pro Forma Effect to the receipt of the proceeds of any indebtedness that is incurred on such date and (y) cash and cash equivalents restricted in favor of the Credit Facilities (which may also include cash and cash equivalents securing other indebtedness permitted hereunder that is secured by a Lien).

 

“continuing” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

 

“Corporate Trust Office” means the address of the Trustee or Collateral Agent, as applicable, specified in Section 13.02 hereof or such other address as to which the Trustee or Collateral Agent, as applicable, may give notice to the Issuer.

 

“Credit Facilities” means the ABL Facility and the Term Loan.

 

“Cristal” means The National Titanium Dioxide Company Limited, a limited company organized under the laws of the Kingdom of Saudi Arabia.

 

“Cristal Transaction” means the acquisition from National Industrialization Company of the TiO₂ business of Cristal that Holdings completed on April 10, 2019.

 

“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect Holdings or any Restricted Subsidiary of Holdings against fluctuations in currency values.

 

“Current Asset Collateral” means the following property of the Issuer and the Guarantors, whether now owned or hereafter acquired:

 

 

 

 

 

 

 

“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

 

“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.

 

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

 

“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.

 

“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.

 

“Equity Offering” means any sale of Capital Stock of Holdings or any capital contribution to the equity of Holdings from any Person other than a Subsidiary of Holdings.

 

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.

 

“Excluded Assets” means the following:

 

(a)          (x) any fee owned real property other than Material Real Property and (y) all leasehold interests in real property;

 

(b)        any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such license, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction, but excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code of any applicable jurisdiction);

 

(c)        any asset to the extent a pledge thereof or grant of security interest therein is prohibited by any requirement of law (including any legally effective requirement to obtain the consent of any governmental authority, except to the extent such consent has been obtained, other than to the extent that any such prohibition would be rendered ineffective pursuant to any other applicable requirements of law, including the Uniform Commercial Code of any applicable jurisdiction);

 

(d)         margin stock and, to the extent (i) prohibited by the terms of, creating an enforceable right of termination in favor of any other party thereto (other than the Issuer or any Guarantor) or requiring the consent of one or more third parties (other than any Holding Company) under and/or (ii) any pledge could give rise to a “right of first refusal”, a “right of first offer” or a similar right that may be exercised by any third party (other than any Holding Company) pursuant to, any applicable organizational documents, joint venture agreement or shareholders’ agreement, Capital Stock in any Person other than Restricted Subsidiaries that are wholly-owned subsidiaries;

 

(e)          assets to the extent a grant or perfection of a security interest in such assets would result in material adverse tax consequences to Holdings, the Issuer or any of its Restricted Subsidiaries as reasonably determined by the Issuer in consultation with (but without the consent of) the Term Loan Agent (acting solely on behalf of the Term Loan lenders);

(f)        in respect of United States Federal trademark applications, any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, provided that, upon the filing of a “Statement of Use” or “Amendment to Allege Use”, such trademark application will cease to be an Excluded Asset;

 

(g)         any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement permitted hereunder to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement, capital lease or similar arrangement or create a breach, default or right of termination in favor of any other party thereto (other than the Issuer or any Guarantor) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code of any applicable jurisdiction or other similar applicable law notwithstanding such prohibition;

 

(h)         the Capital Stock of (i) any Immaterial Subsidiary, (ii) any Unrestricted Subsidiary, (iii) any not for profit subsidiary, any special purpose entity used for any securitization facility permitted under the Term Loan and this Indenture and/or any captive insurance company, (iv) any employee stock ownership plan or trust established by Holdings or any of its Subsidiaries or a direct or indirect parent of Holdings (to the extent such employee stock ownership plan or trust has been funded by Holdings or any Subsidiary or a direct or indirect parent of Holdings), (v) any acquired entity pledged to secure indebtedness permitted to be assumed under the Term Loan and this Indenture and (vi) any Person other than a wholly owned Restricted Subsidiary if the joint venture or other agreement governing such Person prohibits the pledge of such Capital Stock;

 

(i)         receivables, leases contracts, loans, mortgages, royalties and related assets (or interests therein) including but not limited to inventory, bank accounts, records and proceeds of any of the foregoing (A) sold or contributed to any Receivables Subsidiary or (B) otherwise pledged, factored, transferred or sold, in each case, in connection with any Permitted Receivables Financing; and/or

 

(j)          solely with respect to the obligations of Guarantors that are United States persons for U.S. federal income tax purposes (for avoidance of doubt, excluding the Issuer), (i) in excess of 65% of the voting Capital Stock of (A) any first-tier Foreign Subsidiary of a Domestic Subsidiary that is a CFC or (B) any FSHCO, and (ii) any Capital Stock in any Subsidiary owned by any CFC or FSHCO described in clause (j)(i); provided that any Capital Stock in which there has previously been a security interest pursuant to the Security Documents shall not be excluded as a result of the application of this clause (j) even if such Capital Stock subsequently satisfies the conditions for exclusion under this clause (j);

 

provided, further that notwithstanding the foregoing, to the extent secured by non-U.S. Guarantors under a floating charge (or other similar security) under a global security document, the class of assets referred to in paragraphs (a), (e), (f) and (g) above shall not be considered “Excluded Assets”. Other assets shall be deemed to be “Excluded Assets” if the Term Loan Agent (acting solely on behalf of the Term Loan lenders) and the Issuer reasonably agree in writing that the cost of obtaining or perfecting a security interest in such assets is excessive in relation to the value of such assets as Collateral to the Term Loan.

“Excluded Entity” means:

 

 

 

 

“Exclusive Term Loan Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

“Finance Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a finance lease on the balance sheet of that Person.

 

“Finance Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Finance Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that Finance Lease Obligations shall, for the avoidance of doubt, exclude all Non-Finance Lease Obligations.

 

“First Lien Net Leverage Ratio” means, as of any date, the ratio of Consolidated First Lien Net Debt as of such date to Consolidated EBITDA for the Test Period most recently ended on or prior to such date, calculated on a Pro Forma Basis.

 

“Fixed Asset Collateral” means any and all of the assets of the Issuer and the Guarantors, whether now owned or hereafter acquired, consisting of: any interests (fee, leasehold or otherwise) in any real property; intellectual property; equipment; equity interests of Holdings or any of its Subsidiaries, including the Issuer and the Guarantors; any Exclusive Term Loan Collateral; any Blocked Reinvestment Account or Insurance/Condemnation Proceeds Reinvestment Account; and all other Collateral other than the Current Asset Collateral.

 

“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.

 

“French Side Letter” means the negative pledge side letter, to be dated on the Issue Date, by and among the Issuer, the Guarantors party thereto and the Collateral Agent.

 

“FSHCO” means any direct or indirect Domestic Subsidiary of Holdings (other than the Issuer) that has no material assets other than Capital Stock and debt, if any, in one or more direct or indirect Foreign Subsidiaries that are CFCs.

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which were in effect as of the Issue Date.

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“Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is required to be placed on all Global Notes issued under this Indenture.

 

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(1) or 2.06(d)(2) hereof.

 

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

 

“Group” means Holdings and each of its Subsidiaries from time to time.

 

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

“Guarantors” means  Holdings and certain of Holdings’ other Subsidiaries that guarantee any obligations under the Credit Facilities on the Issue Date,  any other Subsidiary of Holdings that executes a Supplemental Indenture in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Holder” means a Person in whose name a Note is registered.

 

“Holding Company” means each of Holdings, Tronox Investment Holdings Limited, a private limited company incorporated under the laws of England and Wales with registered number 11880284, and Tronox Limited (ACN 153 348 111), a public limited company incorporated in the Commonwealth of Australia.

 

“Holdings” means Tronox Holdings plc, or any successor obligor to its obligations under this Indenture and its Note Guarantee pursuant to Article 5 hereof.

 

“Immaterial Subsidiary” means any Restricted Subsidiary that is not a Material Subsidiary.

 

“incur” means to issue, assume, guarantee, incur or otherwise become liable for.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

“Initial Notes” means the first $500.0 million in aggregate principal amount of Notes issued under this Indenture on the date hereof.

 

“Insurance/Condemnation Proceeds Reinvestment Account” has the meaning assigned to such term in the ABL Intercreditor Agreement.

“Intercompany Intercreditor Agreement” means the Intercompany Intercreditor Agreement, dated as of May 1, 2020, among the Trustee, the Collateral Agent, Holdings and the Subsidiaries of Holdings from time to time party thereto, as amended, restated, amended and restated, otherwise modified, refinanced or replaced from time to time.

 

“Intercompany Note” means the Fourth Amended and Restated Intercompany Note, dated as of May 1, 2020, by and among Holdings and its Subsidiaries.

 

“Intercreditor Agreements” means the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, the Intercompany Intercreditor Agreement and any other Market Intercreditor Agreement.

 

“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by ▇▇▇▇▇’▇ and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“Issue Date” means the date on which Notes are first issued under this Indenture.

 

“Issuer” means Tronox Incorporated or any successor obligor to the obligations of Tronox Incorporated under this Indenture and the Notes pursuant to Article 5 hereof, as the case may be.

 

“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.

 

“Lien” means a mortgage, deed of trust, security interest, pledge, encumbrance, hypothecation, “security interest” as defined in the Australian PPS Law, lien or charge of any kind and including the interest of a vendor or a lessor under any conditional sale, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing).

 

“Limited Condition Transaction” means (i) any acquisition or other investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

 

“Market Intercreditor Agreement” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

“Material Adverse Effect” means, a circumstance or condition that would materially and adversely affect (in each case after taking into account all relevant factors or circumstances including any insurance, warranty, indemnity or other resources available to Holdings and its Restricted Subsidiaries or right of recourse against any third party with respect to the relevant circumstance or condition) (i) the business, assets, financial condition or results of operations and any obligation of any person in force to provide any equity investment in each case, of Holdings or the Issuer (as applicable) or Holdings and the Restricted Subsidiaries, taken as a whole, (ii) the ability of the Issuer and the Guarantors (taken as a whole) to perform their payment obligations under the applicable Notes Documents or (iii) the rights and remedies (taken as a whole) of the Trustee, the Collateral Agent and the Holders under the applicable Notes Documents.

“Material Real Property” means each parcel of real property and the improvements thereon (i) owned in fee by the Issuer or any Guarantor and subject to a Lien in favor of the Term Loan Collateral Agent as of the Issue Date or (ii) if acquired by the Issuer or any Guarantor after the Issue Date, having an individual fair market value of greater than $20.0 million as determined on the date of acquisition (or the date of substantial completion of any material improvement thereon or new construction thereof).

 

“Material Subsidiary” means (a) each Restricted Subsidiary that, as of the last day of the fiscal quarter of Holdings’ most recently ended for which financial statements are available, had revenues or total assets (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) for such quarter in excess of 5.0% of the consolidated revenues or total assets, as applicable, of Holdings and the Restricted Subsidiaries for such quarter or that is designated by Holdings as a Material Subsidiary and (b) any Restricted Subsidiary that, taken together with other Restricted Subsidiaries that each would not have been a Material Subsidiary under clause (a) but that, taken together, as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are available, had revenues or total assets (determined on a consolidated basis for all such Restricted Subsidiaries and their respective Restricted Subsidiaries) for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of Holdings and the Restricted Subsidiaries for such quarter.

 

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc. and its successors.

 

“Non-Finance Lease Obligation” means a lease obligation that is not required to be accounted for as a  finance lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Finance Lease Obligation.

 

“Non-U.S. Person” means a Person who is not a U.S. Person.

 

“Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

 

“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes; provided, however, that Additional Notes that are not fungible with the Initial Notes for U.S. federal income tax purposes shall have a separate CUSIP, ISIN or other securities identification number from the Initial Notes.

 

“Notes Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

“Notes Documents” means this Indenture, the Notes (including any Additional Notes), the Note Guarantees, the Intercompany Intercreditor Agreement, the Intercompany Note and the Security Documents.

 

“Notes Obligations” means all Obligations owing pursuant to the Notes, this Indenture, the Note Guarantees and the other Notes Documents.

“Obligations” means any principal (including reimbursement obligations with respect to letters of credit whether or not drawn), interest (including, to the extent legally permitted, all interest accrued thereon after the commencement of any insolvency or liquidation proceeding at the rate, including any applicable post-default rate, specified in the applicable agreement), premium (if any), guarantees of payment, fees, indemnifications, reimbursements, expenses, damages and other liabilities payable under the documentation governing any indebtedness; provided that Obligations with respect to the Notes shall not include fees or indemnification in favor of third parties other than the holders of the Notes and the Trustee and the Collateral Agent (and their respective agents, directors, officers, employees and counsel).

 

“Offering Circular” means the final offering circular dated as of April 24, 2020 related to the issuance of the Notes.

 

“Officer” means, with respect to any Person, the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, any Director, any Manager, the Secretary or any Vice-President of such Person (or with respect to the Issuer or any Guarantor, an authorized signatory).

 

“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or Holdings that meets the requirements of Section 12.05 hereof.

 

“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to Holdings, an Issuer or any Subsidiary of Holdings.

 

“Pari Passu Intercreditor Agreement” means that certain First Lien Pari Passu Intercreditor Agreement, dated as of May 1, 2020, among Bank of America, N.A., as Initial First Lien Representative and Initial First Lien Collateral Agent, the Trustee, the Collateral Agent, each additional Representative and Collateral Agent from time to time party thereto, the Issuer and the Guarantors, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

 “Pari Passu Lien” means any Lien granted or purported to be granted to the Collateral Agent or any other Pari Passu Lien Representative to secure any Pari Passu Lien Obligations.

 

“Pari Passu Lien Documents” means, collectively, (x) this Indenture, the Notes, the Security Documents, the Intercreditor Agreements, the Term Loan, and the Pari Passu Lien Security Documents, and (y) any other indenture, credit agreement or other agreement governing or evidencing any other Pari Passu Lien Obligations, provided, in the case of this clause (y), that (i) the indebtedness thereunder has been designated as Pari Passu Obligations pursuant to and in accordance with the terms of the Pari Passu Intercreditor Agreement, (ii) such indebtedness was permitted to be incurred and secured pursuant to the terms of the ABL Facility, the Term Loan, this Indenture and each of the other then existing Pari Passu Lien Documents and (iii) the applicable Pari Passu Representative shall have joined the Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement.

“Pari Passu Lien Obligations” means (i) the Notes Obligations, (ii) the Term Loan Obligations and (iii) all Obligations and other amounts owing to any other holder of Pari Passu Obligations pursuant to the terms of any other Pari Passu Lien Document (together, in each such case, with any secured ▇▇▇▇▇▇, cash management arrangements or similar permitted arrangements secured by the Pari Passu Lien Security Documents of the applicable Series).

“Pari Passu Lien Representative” means (1) the Collateral Agent, in the case of the Notes, (2) the Term Loan Collateral Agent, in the case of the Term Loan, and (3) in the case of any other series of Pari Passu Lien Obligations, the trustee, agent or representative of the holders of such series of Pari Passu Lien Obligations that is appointed as a representative of such series of Pari Passu Lien Obligations (for purposes of the administration of the applicable Pari Passu Lien Security Documents) pursuant to the indenture, credit agreement or other agreement governing such series of Pari Passu Lien Obligations.

 

“Pari Passu Lien Security Documents” means the security documents or collateral documents or similar term as defined in the applicable Pari Passu Lien Document and any other agreement, document or instrument entered into for the purpose of granting a Lien to secure any Pari Passu Obligations or to perfect such Lien.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

 

“Permitted Encumbrances” means:

 

 

 

 

 

 

 

 

 

“Permitted Holders” means each of (a) managers and members of management of Holdings (or any parent entity or Public Company specified in clause (c) of this definition that is a direct or indirect parent of Holdings) or its Subsidiaries that have ownership interests in Holdings (or such parent entity or Public Company specified in clause (c) of this definition that is a direct or indirect parent of Holdings), (b) any group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of which the Persons described in clause (a) of this definition are members; provided that, without giving effect to the existence of such group or any other group, the Persons described in clause (a), collectively, beneficially own Voting Stock representing 50% or more of the total voting power of the Voting Stock of Holdings (or such parent entity specified in clause (c)(i) of this definition) then held by such group, and (c)(i) any direct or indirect parent of Holdings so long as a Permitted Holder pursuant to clauses (a) or (b) of this definition holds 50% or more of the Voting Stock of such direct or indirect parent of Holdings, (ii) any Public Company (or wholly owned Subsidiary of such Public Company) to the extent and until such time as any Person or group (other than a Permitted Holder under clause (a) or (b) of this definition) is deemed to be or become a beneficial owner of Voting Stock of such Public Company representing more than 50% of the total voting power of the Voting Stock of such Public Company and (iii) each of (x) Exxaro Resources Limited, and (y) Cristal Global and Cristal Australia Pty Limited, in each case including any parent entity thereof.

Any Person or group, together with its affiliates, whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer or Alternate Offer is made in accordance with the requirements of this Indenture will thereafter, together with its affiliates, constitute an additional Permitted Holder.

 

“Permitted Liens” means each of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“Permitted Receivables Financing” means a securitization or other similar financing (including any factoring program) of Permitted Receivables Financing Assets that is non-recourse to Holdings, the Issuer and the Restricted Subsidiaries (except for (w) recourse to any Foreign Subsidiaries that own the assets underlying such financing (or have sold such assets in connection with such financing), (x) any customary limited recourse pursuant to the Standard Securitization Undertakings or, to the extent applicable only to non-guarantor Subsidiaries, recourse that is customary in the relevant local market, (y) any performance undertaking or guarantee, to the extent applicable only to non-guarantor Subsidiaries, that is customary in the relevant local market, and (z) an unsecured parent guarantee by Holdings or any Restricted Subsidiary that is a parent company of a Foreign Subsidiary of obligations of Foreign Subsidiaries, and, in each case, reasonable extensions thereof).

“Permitted Receivables Financing Assets” means (a) any accounts receivable, loan receivables, mortgage receivables, receivables or loans relating to the financing of insurance premiums, royalty, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all assets securing or related to any such receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of any such receivable or asset, lockbox accounts and records with respect to any such receivable or assets and any other assets (including inventory and proceeds thereof) customarily transferred (or in respect of which security interests are customarily granted) together with receivables or assets in connection with a securitization, factoring or receivables financing or sale transaction.

 

“Person” means an individual, partnership, corporation, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

 

“Priority Lien Documents” means, collectively, the ABL Facility, the ABL Intercreditor Agreement and the indenture, credit agreement or other agreement governing other Priority Lien Indebtedness and the security documents related to the foregoing.

 

“Priority Lien Indebtedness” means:

 

 

 

 

 

 

 

“Priority Lien Obligations” means Priority Lien Indebtedness and all other Obligations in respect thereof.

 

“Priority Lien Representative” means, (1) in the case of the ABL Facility, the ABL Facility Agent and (2) in the case of any other series of Priority Lien Indebtedness, the trustee, agent or representative of the holders of such series of Priority Lien Indebtedness that is appointed as a representative of such series of Priority Lien Indebtedness (for purposes of the administration of the applicable security documents related thereto) pursuant to the indenture, credit agreement or other agreement governing such Priority Lien Indebtedness.

“Priority Lien Security Documents” all of the security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust and other agreements or instruments, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, evidencing or creating or purporting to create or evidence, or perfecting or purporting to perfect, a Lien upon any or all of the Collateral (including, without limitation, financing statements under the UCC) in favor of a Priority Lien Representative, for the benefit of any of the holders of Priority Lien Obligations, in each case, as amended, modified, renewed, restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its terms and the applicable Priority Lien Documents, subject to the terms of the ABL Intercreditor Agreement, as applicable.

 

“Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

 

“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” mean, as to any Person, for any events as described below that occur subsequent to the commencement of a period for which the effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the four (4) consecutive fiscal quarter period ended on or before the occurrence of such event (the “Reference Period”): (a) in making any determination of Consolidated EBITDA or any component thereof, effect shall be given to any Specified Transaction, the Cristal Transaction and any synergies, operating improvements, cost savings or restructurings of the business of Holdings or any of the Restricted Subsidiaries, in each case, that occurred during the Reference Period or with respect to any such event or transaction included in the definition of Specified Transactions are expected to occur within eight (8) fiscal quarters of the determination to take such actions and which Holdings determines are reasonably identifiable and projected in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken, and without duplication of any such amount included in Consolidated EBITDA pursuant to the definition thereof and provided, that any increase in Consolidated EBITDA as a result of synergies, operating improvements, cost savings and restructurings pursuant to this definition shall be subject to the limitations set forth in clause (2) of the definition of Consolidated EBITDA; (b) in making any determination on a Pro Forma Basis, of Pro Forma Compliance or of Pro Forma Effect, (x) all indebtedness (including indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transactions and for which the financial effect is being calculated, whether incurred under this Indenture or otherwise) issued, incurred, assumed or repaid during the Reference Period (or with respect to indebtedness repaid, during the Reference Period or subsequent to the end of the Reference Period and prior to, or simultaneously with, the event for which the calculation of any such ratio is made) shall be deemed to have been issued, incurred, assumed or repaid at the beginning of such period and (y) interest expense of such Person attributable to interest on any indebtedness, for which pro forma effect is being given as provided in preceding clause (x), bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period for which pro forma effect is being given had been actually in effect during such periods, (c) with respect to (i) any redesignation of a Subsidiary as a Restricted Subsidiary, effect shall be given to such Subsidiary redesignation and all other Subsidiary redesignations after the first day of the relevant Reference Period and on or prior to the date of the respective Subsidiary redesignation then being designated, collectively, and (ii) any designation of a Subsidiary as an Unrestricted Subsidiary, effect shall be given to such designation and all other designations of Subsidiaries as Unrestricted Subsidiaries after the first day of the relevant Reference Period and on or prior to the date of the then applicable designation of a Subsidiary as an Unrestricted Subsidiary, collectively, and (d) notwithstanding anything to the contrary in this definition or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the asset sale, transfer, disposition or lease thereof has been entered into as discontinued operations, no Pro Forma Effect shall be given to the classification thereof as discontinued operations (and the Consolidated EBITDA or any component thereof attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such asset sale, transfer, disposition or lease shall have been consummated.

Whenever a financial ratio or test or covenant is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements of Holdings are available.

 

“Pro Forma Disposal Adjustment” means, taking into account any limitations set forth in the definition of Pro Forma Basis, for any four-quarter period that includes all or a portion of a fiscal quarter included in any post-transaction period with respect to any Sold Entity or Business, the pro forma increase or decrease in Consolidated EBITDA projected by the Issuer in good faith as a result of contractual arrangements between Holdings or any Restricted Subsidiary entered into with such Sold Entity or Business at the time of its disposal or within the post-transaction period and which represent an increase or decrease in Consolidated EBITDA which is incremental to the disposed EBITDA of such Sold Entity or Business for the most recent four-quarter period prior to its disposal.

 

“Pro Forma Entity” means any Acquired Entity or Business or any Converted Restricted Subsidiary.

 

“Public Company” means any Person with a class or series of Voting Stock that is traded on a stock exchange or in the over-the-counter market.

 

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

 

“Qualified Securitization Transaction” means any transaction or series of transactions that may be entered into by Holdings or any of its Subsidiaries pursuant to which Holdings or any of its Subsidiaries may sell, convey or otherwise transfer pursuant to terms necessary or customary in the relevant jurisdiction, directly or indirectly, to

 

 

 

or may grant a security interest, in any accounts receivable or any participations or other interests therein (whether now existing or arising or acquired in the future) of Holdings or any of its Subsidiaries or other entities formed as necessary or customary under the laws of the relevant jurisdiction, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets (including contract rights) which are necessarily or customarily transferred in the relevant jurisdiction or in respect of which security interests are necessarily or customarily granted in the relevant jurisdiction in connection with asset securitization transactions involving accounts receivable.

“Rating Agency” means each of (i) S&P and ▇▇▇▇▇’▇ or (ii) if either S&P or ▇▇▇▇▇’▇ or both of them are not making ratings of the Notes publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by Holdings, which will be substituted for S&P or ▇▇▇▇▇’▇ or both, as the case may be.

 

“Ratings Event” means (1) to the extent the Notes were rated with an Investment Grade Rating by either of the Rating Agencies at the commencement of the Relevant Period (as defined below), and the ratings of such Notes are downgraded by one or both of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (the “Relevant Period”) such that the rating of the Notes by both of the Rating Agencies at the end of the Relevant Period is below an Investment Grade Rating, which downgrading is a result of the transactions constituting or occurring simultaneously with the applicable Change of Control (as evidenced by a public statement by the Rating Agency or Rating Agencies that downgraded the Notes) or (2) to the extent the Notes were not rated with an Investment Grade Rating by either of the Rating Agencies at the commencement of the Relevant Period, the Notes continue to be rated at a level below an Investment Grade Rating by both of the Rating Agencies at the end of the Relevant Period.

 

“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing and any other subsidiary (other than the Issuer and any Guarantor) involved in a Permitted Receivables Financing which is not permitted by the terms of such Permitted Receivables Financing to guarantee the Notes or provide Collateral.

 

“Regulation S” means Regulation S promulgated under the Securities Act.

 

“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.

 

“Responsible Officer” means, when used with respect to the Trustee, any officer within the capital markets department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and in each case, who shall have direct responsibility for the administration of this Indenture, and when used with respect to the Collateral Agent, means any officer within the capital markets department of the Collateral Agent (or any successor group of the Collateral Agent) or any other officer of the Collateral Agent customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and in each case, who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

 

“Restricted Global Note” means a Global Note bearing the Private Placement Legend.

 

“Restricted Subsidiary” of any Person means any Subsidiary of such Person that, at the time of determination, is not an Unrestricted Subsidiary. Unless otherwise indicated in this Indenture, all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of Holdings (including the Issuer).

“Rule 144” means Rule 144 promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A promulgated under the Securities Act.

 

“Rule 903” means Rule 903 promulgated under the Securities Act.

 

“Rule 904” means Rule 904 promulgated under the Securities Act.

 

“S&P” means Standard & Poor’s Global Ratings and its successors.

 

“Sale and Lease-Back Transaction” means the leasing by Holdings or any of its Restricted Subsidiaries of any asset, whether owned on the Issue Date or acquired after the Issue Date (except for temporary leases for a term, including any renewal term, of up to three years and except for leases between or among Holdings and any of its Restricted Subsidiaries), which property has been or is to be sold or transferred by Holdings or any of its Restricted Subsidiaries to any party with the intention of taking back a lease of such property.

 

“SEC” means the Securities and Exchange Commission.

 

“Secured Parties” means the Trustee, the Collateral Agent, the Holders of the Notes, the beneficiaries of each indemnification obligation undertaken by the Issuer or any Guarantor under any Notes Document, and the successors and permitted assigns of each of the foregoing.

 

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statutes thereto.

 

“Securitization Entity” means a wholly owned Subsidiary of Holdings (or another Person in which Holdings or any Subsidiary of Holdings makes an investment and to which Holdings or any Subsidiary of Holdings transfers, directly or indirectly, accounts receivable or participations or interests therein or related assets) which engages in no activities other than in connection with the financing of accounts receivable and which is designated by the Board of Directors of Holdings or a designated representative thereof (as provided below) as a Securitization Entity

 

 

 

 

 

 

 

Any such designation by the Board of Directors of Holdings shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of Holdings giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.

 

“Security Documents” means the U.S. Security Agreement, the Intercreditor Agreements, the French Side Letter and all of the security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust and other agreements or instruments, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, evidencing or creating or purporting to create or evidence, or perfecting or purporting to perfect, a Lien in favor of the Collateral Agent in the Collateral as contemplated by this Indenture, in each case, as amended, modified, renewed, restated, supplemented or replaced, in whole or in part, from time to time.

 

“Significant Subsidiary” means any Restricted Subsidiary of Holdings which, at the date of determination, is a “Significant Subsidiary” as such term is defined in Regulation S-X promulgated by the SEC.

 

“Special Purpose Entity” means a direct or indirect subsidiary of the Issuer or any guarantor, whose organizational documents contain restrictions on its purpose and activities intended to preserve its separateness from the Issuer and the guarantors and their other subsidiaries.

 

“Specified Transaction” means, with respect to any period, any investment, disposition, incurrence or repayment of indebtedness, dividend, subsidiary designation, operating improvements, restructurings, new project or other event that by the terms of this Indenture requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect” to such event.

 

“Standard Securitization Undertakings” means obligations, representations, warranties, covenants and indemnities entered into by Holdings or any Securitization Entity or any Subsidiary of Holdings which are customary or necessary in the relevant jurisdiction in an accounts receivable securitization transaction.

 

“Subsidiary” means with respect to any Person,

 

 

“Supplemental Indenture” means a supplemental indenture substantially in the form of Exhibit D hereto.

 

“Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap 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 (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

“Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization (as determined by Holdings in good faith) entered into after the date hereof so long as such Tax Restructuring does not impair the guarantee in any material respect and is otherwise not adverse to the holders in any material respect.

 

“Term Loan” means the senior secured first lien term loan facility entered into on September 22, 2017 among Holdings, certain of its subsidiaries, the lenders party thereto from time to time and Bank of America, N.A., as the initial administrative agent, as amended, restated, amended and restated, otherwise modified, refinanced or replaced from time to time.

 

“Term Loan Agent” means Bank of America, N.A., as administrative agent in respect of the Term Loan, and its successors and permitted assigns thereunder.

 

“Term Loan Collateral Agent” means Bank of America, N.A., as collateral agent in respect of the Term Loan, and its successors and permitted assigns thereunder.

 

“Term Loan Obligations” means the Obligations of the Issuer and the guarantors in respect of the Term Loan, and all other “Secured Obligations” as defined in the Term Loan.

 

“Test Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of Holdings ending on or prior to such date for which financial statements are available.

 

“Total Net Secured Debt” means, as of any date, all Consolidated Total Net Debt of the Issuer and the Guarantors as of such date that is secured by a Lien.

 

“Total Net Secured Leverage Ratio” means, as of any date, the ratio of Total Net Secured Debt as of such date to Consolidated EBITDA for the Test Period most recently ended on or prior to such date, calculated on a Pro Forma Basis.

“Transaction Costs” means any fees, expenses and other transaction costs incurred or paid by Holdings, the Issuer or any of its Subsidiaries in connection with the Transactions, this Indenture, the Credit Facilities, the 2025 Notes, the 2026 Notes and the transactions contemplated hereby and thereby.

 

“Transactions” means the issuance of the Notes and the transactions contemplated by the Offering Circular.

 

“Trustee” means Wilmington Trust, National Association, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

 

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a U.S. jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

 

“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Subsidiary” of any Person means:

 

 

 

The Board of Directors of Holdings may, after the Issue Date, designate any Subsidiary (including any newly acquired or newly formed subsidiary) to be an Unrestricted Subsidiary if

 

 

 

The Board of Directors of Holdings may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if immediately before and immediately after giving effect to such designation, no Default or Event of Default will have occurred and be continuing.

Any such designation by the Board of Directors of Holdings will be evidenced to the Trustee by promptly delivering to the Trustee a copy of the board resolution approving the designation and an Officer’s Certificate certifying that the designation complied with this Indenture.

 

“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

 

“U.S. Security Agreement” means, collectively, (i) the Pledge and Security Agreement, dated as of May 1, 2020, among Holdings, the Issuer, the other Guarantors and the Collateral Agent, and (ii) the Pledge Agreement, dated as of May 1, 2020, among Holdings, the Issuer, the other Guarantors from time to time party thereto, and the Collateral Agent, in each case as amended, restated, amended and restated, otherwise modified, refinanced or replaced from time to time.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is entitled to vote in the election of the board of directors or managers of such Person.

 

 

 

 

Unless the context otherwise requires:

 

 

 

 

 

 

 

 

 

 

 

In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of any provision of this Indenture which will require that no Default or Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Issuer, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreement for such Limited Condition Transaction is entered into.

Furthermore, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:

 

 

 

in each case, at the option of the Issuer (the Issuer’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction, the Issuer or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, (i) if the Issuer has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been satisfied as a result of such fluctuations and (ii) such ratios, tests or baskets shall not be tested at the time of consummation of such Limited Condition Transaction, unless the Issuer elects in its sole discretion to test such ratio, test or basket on the date such Limited Condition Transaction is consummated instead of the date of the related definitive agreement. If the Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any event or transaction occurring after 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, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction (a “Subsequent Transaction”) in connection with which a ratio, test or basket availability calculation must be made on a Pro Forma Basis or giving Pro Forma Effect to such Subsequent Transaction, for purposes of determining whether such ratio, test or basket availability has been complied with under this Indenture, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated.

 

ARTICLE 2

THE NOTES

 

 

(a)          General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

The Issuer can issue Additional Notes from time to time in the future as part of the same series without consent from holders of the Notes under this Indenture. Any Additional Notes that the Issuer issues in the future will be identical in all respects to the Notes offered hereby and will be treated as a single class for all purposes of this Indenture, including with respect to waivers, amendments, redemptions and offers to purchase, except that Notes issued in the future may have different issuance prices and will have different issuance dates. However, in order for any Additional Notes to have the same CUSIP number as the Notes, such Additional Notes must be fungible with the Notes for United States federal income tax purposes.

The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuer, 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.

 

(b)         Global Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

(c)         Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by Participants through Euroclear or Clearstream.

 

 

At least one Officer must sign the Notes for the Issuer by manual or facsimile or other electronic signature.

 

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

 

A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.

 

The Trustee will, upon receipt of a written order of the Issuer signed by an Officer of the Issuer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture. There is no limit on the aggregate principal amount of Notes (including Additional Notes) that may be issued under this Indenture.

 

The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an affiliate of the Issuer.

 

The Issuer will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar will keep a register of the Notes and of their transfer and exchange.  The Issuer may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Issuer may change any Paying Agent or Registrar without notice to any Holder.  The Issuer will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.

 

The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.

 

The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.  The Issuer may change the Paying Agent or Registrar without prior notice to the holders, and the Issuer or any of Holdings’ other Subsidiaries may act as Paying Agent or Registrar. The Notes will initially be issued as Global Notes registered in the name of or held by DTC or its nominee and therefore payments with respect thereto will be made by wire transfer of immediately available funds to the account specified by DTC.

 

 

The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest on the Notes, and will notify the Trustee in writing of any default by the Issuer 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 Issuer 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 Holdings, Issuer or a Subsidiary) will have no further liability for the money. If Holdings, Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.

 

 

The Trustee will 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 Issuer will furnish to the Trustee at least seven 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 of Notes.

 

 

(a)         Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:

 

 

 

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee in writing and the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.

 

(b)         Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

 

 

 

(A)

both:

 

 

(B)

both:

 

 

 

Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.

 

 

 

 

 

 

and, in each such case set forth in this Section 2.06(b)(4), if the Issuer or the Registrar so request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer or the Registrar, as the case may be, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to this Section 2.06(b)(4) at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this Section 2.06(b)(4).

 

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

(c)          Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

 

 

 

 

 

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

 

 

 

and, in each such case set forth in this Section 2.06(c)(2), if the Issuer or Registrar so request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer or the Registrar, as the case may be, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(d)          Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

 

 

 

 

 

 

 

the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (a) above, the appropriate Restricted Global Note, in the case of clause (b) above, the 144A Global Note, and in the case of clause (c) above, the Regulation S Global Note.

 

 

 

and, in each such case set forth in this Section 2.06(d)(2), if the Issuer or the Registrar so request or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer or the Registrar, as the case may be, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

 

 

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(b) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

(e)         Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

 

 

 

 

 

 

and, in each such case set forth in this Section 2.06(e)(2), if the Issuer or the Registrar so request, an Opinion of Counsel in form reasonably acceptable to the Issuer or the Registrar, as the case may be, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

 

(f)          [Reserved].

 

(g)          Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

(1)

Private Placement Legend.

(A)

Except as permitted by subparagraph (b) below, each Rule 144A Global Note and each Definitive Note issued in exchange for a beneficial interest in a Rule 144A Global Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form:

(B)

Except as permitted by subparagraph (b) below, in the case of any Notes offered in reliance on Regulation S, each Regulation S Global Note and each Definitive Note issued in exchange for a beneficial interest in a Regulation S Global Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form:

(b)

Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2) or (e)(3) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.

(2)

Global Note Legend. Each Global Note will bear a legend in substantially the following form:

(3)

ERISA Legend. Each Global Note and each Definitive Note issued in exchange for a beneficial interest in a Global Note (and all Notes issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form:

(1)

To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

(2)

No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Section 2.10, 3.06, 4.10 and 9.05 hereof).

(3)

The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

(4)

All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(5)

Neither the Registrar nor the Issuer will be required:

(6)

Prior to due presentment for the registration of a transfer of any Note, the Trustee, the Collateral Agent, any Agent and the Issuer 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 Notes and for all other purposes, and none of the Trustee, the Collateral Agent, any Agent or the Issuer shall be affected by notice to the contrary.

(7)

The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

(8)

All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

Section 2.07

Replacement Notes.

Section 2.08

Outstanding Notes.

Section 2.09

Treasury Notes.

Section 2.10

Temporary Notes.

Section 2.11

Cancellation.

Section 2.12

Defaulted Interest.

Section 2.13

CUSIP and ISIN Numbers.

Section 2.14

Additional Amounts.

(a)

All payments required to be made by or on behalf of the Issuer under or with respect to the Notes or by or on behalf of any Guarantor under or with respect to a Note Guarantee (the Issuer or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will be made free and clear of, and without withholding or deduction for or on account of, any taxes imposed or levied by or on behalf of any authority or agency having power to tax within any jurisdiction in which any Payor is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of such Payor (each a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct such taxes by law or regulation.

(b)

If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Note Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by any Holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder or beneficial owner would have received if such taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

(c)

The Issuer and the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this Section 2.14(c) as “stamp taxes”) for which the Issuer, any guarantor or a Holder of Notes is accountable and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of, or in connection with payments under, the Notes, this Indenture, the Note Guarantees or any other document or instrument in relation thereto (other than on a transfer or assignment of the Notes) except for stamp taxes due as a result of registration or other action by the Holder where such registration or action is not necessary to maintain, preserve, establish, enforce, perfect or protect the rights of the Holder.

(d)

The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon request from Holders, the Payor will use reasonable efforts to provide the Trustee, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, with official receipts or other documentation evidencing the payment of the taxes so deducted or withheld.

(e)

If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, the Payor will deliver to the paying agent with a copy to the Trustee on a date that is at least 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 45th day prior to that payment date, in which case the Payor shall notify the paying agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the paying agent to pay Additional Amounts to Holders on the relevant payment date. The Payor shall also deliver a form of Additional Amounts notice that can be delivered to the registered Holders.

(f)

Whenever in this Indenture there is mentioned, in any context:

(1)

the payment of principal;

(2)

the payment of interest; or

(3)

any other amount payable on or with respect to any of the Notes,

(g)

The obligations described in this Section 2.14 will survive any termination, defeasance or discharge of this Indenture or any Note Guarantee and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Payor is incorporated, organized or otherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.

Section 3.01

Notices to Trustee.

(1)

the clause of this Indenture pursuant to which the redemption shall occur;

(2)

the redemption date;

(3)

the principal amount of Notes to be redeemed; and

(4)

the redemption price.

Section 3.02

Selection of Notes to Be Redeemed or Purchased.

Section 3.03

Notice of Redemption.

(1)

the date fixed for redemption of such Notes;

(2)

the redemption price and the amount of accrued interest, if any, to be paid;

(3)

the name and address of the Paying Agent;

(4)

that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(5)

that unless the Issuer defaults in making the redemption payment, interest, if any, on Notes or portions of them called for redemption will cease to accrue on and after the redemption date;

(6)

that, if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed, and the only remaining right of the Holders of such Notes is to receive payment of the redemption price upon surrender to the Paying Agent of such Notes;

(7)

that, if less than all the Notes are to be redeemed, the identification of the particular Notes and the principal amount (or portion thereof) of such Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption;

(8)

whether the redemption is conditioned on any events and what such conditions are;

(9)

the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

(10)

that no representation is made as to the correctness or accuracy of the CUSIP and/or ISIN numbers, if any, listed in such notice or printed on the Notes.

Section 3.04

Effect of Notice of Redemption.

Section 3.05

Deposit of Redemption or Purchase Price.

Section 3.06

Notes Redeemed or Purchased in Part.

Section 3.07

Optional Redemption.

(a)

At any time prior to May 1, 2022, the Issuer may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the applicable date of redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date occurring prior to or on the date of redemption.

(b)

At any time prior to May 1, 2022, the Issuer may, at its option on any one or more occasions following any Equity Offering, redeem Notes in an aggregate principal amount not to exceed 40% of the aggregate principal amount of Notes issued under this Indenture (including any Additional Notes), upon not less than 30 nor more than 60 days’ notice, at a redemption price of 106.500% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, thereon up to, but excluding, the redemption date (subject to the rights of holders of Notes on a relevant record date to receive interest due on an interest payment date that occurs prior to the redemption date), and any amount payable in any such redemption can be funded from any source; provided that: (1) at least 50% of the aggregate principal amount of Notes issued under this Indenture (including any Additional Notes) remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Issuer or its affiliates); and (2) the redemption must occur within 180 days of the date of the closing of such Equity Offering.

(c)

Except pursuant to Sections 3.07(a), 3.07(b), 3.08 and 4.10(e) hereof, the Notes will not be redeemable at the Issuer’s option prior to May 1, 2022.

(d)

On or after May 1, 2022, the Issuer may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable date of redemption, if redeemed during the twelve-month period beginning on May 1 of each of the years indicated below:

(e)

Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

(f)

Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

Section 3.08

Optional Redemption for Changes in Withholding Taxes.

(a)

The Issuer is entitled to redeem Notes, at its option, at any time in whole but not in part, upon not less than 30 nor more than 60 days’ notice to the Holders of the Notes, at a redemption price equal to 100% of the outstanding principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in the event any Payor has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes, any Additional Amounts (but, in the case of a Guarantor, only if such amount could not be paid by the Issuer or another Guarantor who can pay such amount without the obligation to pay Additional Amounts), in each case, as a result of:

(1)

a change in, or an amendment to, the laws (including any regulations or rulings promulgated thereunder) or treaties of any Relevant Taxing Jurisdiction; or

(2)

any change in, amendment to, or introduction of any official published position regarding the application, administration or interpretation of such laws or treaties (including any regulations or rulings promulgated thereunder and including the decision of any court, governmental agency or tribunal),

(b)

Prior to the giving of any notice of redemption described in Section 3.08(a) hereof, the Issuer will deliver to the Trustee an Officer’s Certificate to the effect that the Payor cannot avoid its obligation to pay Additional Amounts by taking reasonable measures available to it. The Issuer will also deliver to the Trustee an Opinion of Counsel of recognized standing to the effect that the Payor would be obligated to pay Additional Amounts as a result of a change, amendment, or introduction described above. Absent manifest error, the Trustee will accept such Opinion of Counsel and Officer’s Certificate as sufficient evidence of the Payor’s obligations, to pay such Additional Amounts, and it will be conclusive and binding on the Holders of the Notes.

Section 3.09

Mandatory Redemption.

Section 3.10

Open Market Purchases.

Section 4.01

Payment of Notes.

Section 4.02

Maintenance of Office or Agency.

Section 4.03

Reports.

(a)

Whether or not required by the SEC, so long as any Notes are outstanding, Holdings will furnish to the Trustee and to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations including any extension periods available under such rules and regulations and excluding any requirement and time periods applicable to “accelerated filers” (as defined in Rule 12b-2 under the Exchange Act) under such rules and regulations, and make available to securities analysts and potential investors upon request:

(1)

all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Holdings were required to file such Forms, including a “Narrative Analysis of Results of Operations” or “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as applicable, and, with respect to the annual information only, a report on the annual financial statements by Holdings’ certified independent accountants; and

(2)

all current reports that would be required to be filed with the SEC on Form 8-K if Holdings were required to file such reports;

(b)

If Holdings has designated as an Unrestricted Subsidiary any of its Subsidiaries that would, individually or in the aggregate, constitute a Significant Subsidiary, then the quarterly and annual financial information required by Section 4.03(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes or schedules thereto, or in Narrative Analysis of Results of Operations or Management’s Discussion and Analysis of Financial Condition and Results of Operations, as applicable, of the financial condition and results of operations of Holdings and its Restricted Subsidiaries separate from the financial condition and results of operations of any such Unrestricted Subsidiaries of Holdings.

(c)

In the event that any direct or indirect parent company of Holdings is or becomes a Guarantor of the Notes, Holdings may satisfy the requirements of this Section 4.03 with respect to financial information relating to Holdings by furnishing financial information relating to any direct or indirect parent of Holdings as may exist at any time in the future (any such entity the “Future Parent Entity”) instead of Holdings; provided that to the extent either (x) such Future Parent Entity holds assets (other than its direct or indirect interest in Holdings) that exceed 2.5% of the assets of Holdings and its Subsidiaries as of such fiscal period end or (y) such Future Parent Entity has revenues (other than revenue of Holdings and its Subsidiaries) that exceed 2.5% of the total revenue of Holdings and its Subsidiaries for the immediately preceding fiscal period, then such information related to such Future Parent Entity shall be accompanied by consolidating information that explains in reasonable detail the differences between the information of such Future Parent Entity, on the one hand, and the information relating to Holdings and its Subsidiaries on a stand-alone basis, on the other hand.

(d)

For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by Section 4.03(a) and (b), the Issuer and the Guarantors will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(e)

Delivery of the reports and documents described above to the Trustee is for informational purposes only, and the Trustee’s receipt of such reports and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Issuer’s or the Guarantors’ compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely on an Officer’s Certificate).

(f)

For purposes of this Section 4.03, Holdings will be deemed to have furnished such reports referred to above to the Trustee and the Holders if Holdings has filed such reports with the SEC via the ▇▇▇▇▇ filing system and such reports are publicly available; provided, however, that the Trustee shall have no obligation to determine whether or not Holdings shall have made such filings.

Section 4.04

Compliance Certificate.

(a)

Holdings or the Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officer’s Certificate stating that as to each such Officer signing such certificate, that to the best of his or her knowledge Holdings and its Restricted Subsidiaries have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action Holdings or the Issuer is taking or proposes to take with respect thereto).

(b)

So long as any of the Notes are outstanding, Holdings or the Issuer will deliver to the Trustee, promptly upon any Officer obtaining knowledge of any Event of Default, an Officer’s Certificate specifying such Event of Default, the status thereof and what action it has taken or proposes to take to remedy such Event of Default.

Section 4.05

Stay, Extension and Usury Laws.

Section 4.06

Limitation on Secured Debt.

(a)

Holdings will not, and will not permit any of its Restricted Subsidiaries to create, incur, issue, assume or guarantee any indebtedness for borrowed money secured by a Lien, unless:

(1)

in the case of Liens on any asset or property constituting Collateral, such Lien expressly has priority that is junior to the Lien on the Collateral relative to the Notes and the applicable Guarantee of a guarantor; and

(2)

in the case of any Lien on any asset or property that is not on any asset or property constituting Collateral, the Notes (or a Guarantee in the case of Liens on assets or property of a guarantor) are secured on a pari passu basis with (or on a senior basis to, in the case such Lien secures any subordinated indebtedness) the Obligations secured by such Lien until such time as such Obligations are no longer secured by such Lien.

(b)

The provisions of Section 4.06(a) hereof will not apply to indebtedness secured by any of the following:

(1)

Liens securing indebtedness in an amount equal to (x) the amount incurred under the Credit Facilities as of the Issue Date (including, for purposes of this clause (x), undrawn commitments under the ABL Facility as of the Issue Date), plus (y) the greater of (i) $700.0 million and (ii) an amount equal to 100% of Consolidated EBITDA for the four most recently ended fiscal quarters (including letters of credit or bankers’ acceptances issued or created under the Credit Facilities and any guarantees in respect thereof, plus in the case of any refinancing of any such indebtedness or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses incurred in connection with such refinancing);

(2)

Liens on any property acquired, leased, constructed or improved by Holdings or any of its Restricted Subsidiaries after the date of this Indenture to secure indebtedness incurred for the purpose of financing or refinancing all or any part of the purchase price of such property or of the cost of any construction or improvements on such property, in each case, to the extent that the original indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;

(3)

Liens on any property existing at the time Holdings or any Restricted Subsidiary acquires any of the same;

(4)

Liens on property of a Person existing at the time Holdings or any Restricted Subsidiary merges or consolidates with such Person or at the time Holdings or any Restricted Subsidiary acquires all or substantially all of the properties of such Person;

(5)

Liens to secure indebtedness of any Restricted Subsidiary of Holdings to Holdings or another Restricted Subsidiary;

(6)

Liens in favor of governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure indebtedness incurred or guaranteed to finance or refinance all or any part of the purchase price of the property, shares of Capital Stock or indebtedness subject to such Liens, or the cost of constructing or improving the property subject to such Liens;

(7)

Liens to secure indebtedness, together with all other indebtedness incurred under this clause (7) not to exceed, at the time of incurrence and after application of the proceeds therefrom, an aggregate amount not to exceed the greater of (i) $125.0 million (including any refinancing indebtedness incurred pursuant to clause (9) below) and (ii)(x) in the case of Liens secured by the Collateral on a pari passu basis with the Notes (and subject to the representative of such indebtedness entering into the Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement), an amount that, after giving pro forma effect to the incurrence of such indebtedness, would cause the First Lien Net Leverage Ratio not to exceed 3.5 to 1.00 (or, if greater, to the extent such indebtedness is incurred in connection with the financing of an acquisition or investment, the First Lien Net Leverage Ratio in effect for the most recently ended Test Period) and (y) in the case of Liens not secured by the Collateral, an amount that, after giving pro forma effect to the incurrence of such indebtedness, would cause the Total Net Secured Leverage Ratio not to exceed 4.5 to 1.00 (or, if greater, to the extent such indebtedness is incurred in connection with the financing of an acquisition or investment, the Total Net Secured Leverage Ratio in effect for the most recently ended Test Period);

(8)

Liens securing the Notes (but not any Additional Notes);

(9)

extensions, renewals or replacements of any Lien existing on, or contractually obligated to be granted within a period of time following, the Issue Date (other than Liens securing indebtedness under the Credit Facilities) or any Lien referred to above; provided that (i) the principal amount of indebtedness secured thereby may not exceed the principal amount of indebtedness (including, for the avoidance of doubt, any unused commitments under any revolving credit facilities) so secured at the time of such extension, renewal or replacement (plus the amount of all fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses incurred in connection therewith), and such extension, renewal or replacement will be limited to all or a part of the property (plus improvements and construction on such property), shares of Capital Stock or indebtedness that was subject to the Lien so extended, renewed or replaced and (ii) such new Lien does not rank senior in priority to the original Lien;

(10)

Liens on accounts receivable and related assets of Holdings and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and

(11)

Permitted Liens.

(c)

Notwithstanding the restrictions contained in Sections 4.06(a) and 4.06(b), (i) Holdings and its Restricted Subsidiaries may, without having to equally and ratably secure the Notes issue, assume or guarantee indebtedness secured by a Lien, if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any indebtedness that is concurrently being retired, the aggregate amount of all such indebtedness secured by Liens that would otherwise be subject to the restrictions in Section 4.06(a) (other than any indebtedness secured by Liens described in clauses (a) and (b) of this Section 4.06) plus the aggregate amount (without duplication) of all Attributable Debt of Holdings and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that are permitted under clauses (1) and (2) of Section 4.08) does not exceed the greater of (x) $175.0 million and (y) 25% of Consolidated EBITDA for the most recent four quarters for which statements are available (trailing the date on which any indebtedness is incurred), (ii) all indebtedness outstanding pursuant to the Credit Facilities on the Issue Date shall be deemed to have been incurred on the Issue Date in reliance on Section 4.06(b)(1)(x) and may not be reclassified and (iii) in the event an item of indebtedness is incurred pursuant to Sections 4.06 (a) and (b) (other than Section 4.06(b)(7)(ii)) on the same date that an item of indebtedness is incurred under Section 4.06(b)(7)(ii), then the First Lien Net Leverage Ratio will be calculated with respect to such incurrence under Section 4.06(b)(7)(ii) without regard to any incurrence under Sections 4.06 (a) and (b) (other than with respect to any incurrence under Section 4.06(b)(7)(ii)).

Section 4.07

Limitation on Non-Guarantor Subsidiary Debt.

(a)

Holdings will not permit any of its Restricted Subsidiaries that is not a Guarantor to create, assume, incur, issue or guarantee any indebtedness for borrowed money (any such indebtedness of a non-guarantor Subsidiary, “Non-Guarantor Subsidiary Debt”), unless such Restricted Subsidiary guarantees the payment of the principal of, premium, if any, and interest on the Notes on a senior secured basis.

(b)

The provisions of Section 4.07(a) hereof will not apply to Non-Guarantor Subsidiary Debt constituting:

(1)

indebtedness of a Person existing at the time such Person is merged into or consolidated with Holdings or any of its Restricted Subsidiaries or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Restricted Subsidiary of Holdings that is assumed by any Restricted Subsidiary of Holdings; provided that such indebtedness was not incurred in contemplation thereof;

(2)

indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of Holdings; provided that such indebtedness was not incurred in contemplation thereof;

(3)

indebtedness owed to or among Holdings or any of its Restricted Subsidiaries;

(4)

indebtedness of any Restricted Subsidiary of Holdings secured by Liens on assets of such Restricted Subsidiary permitted under any of clauses (1) through (10) of Section 4.06(b) (other than clause (b)(7)(ii) of such Section);

(5)

indebtedness outstanding on the Issue Date (including, for the avoidance of doubt, any unused commitments under any revolving credit facilities) or any extension, renewal, replacement or refunding of any indebtedness existing on the Issue Date or referred to in clauses (1), (2), (3) or (4) ; provided that the principal amount of the indebtedness incurred pursuant to this clause (5) shall not exceed the principal amount of the original indebtedness plus all premiums, fees and expenses (including accrued interest) payable in connection with any such extension, renewal, replacement or refunding; and

(6)

indebtedness in respect of a Qualified Securitization Transaction.

(c)

Notwithstanding the restrictions described in this Section 4.07, Holdings and any of its Restricted Subsidiaries may create, incur, issue, assume or guarantee Non-Guarantor Subsidiary Debt, without guaranteeing the Notes on a senior secured basis, if at the time of such creation, incurrence, issuance, assumption or guarantee, after giving effect thereto and to the retirement of any indebtedness that is concurrently being retired, the aggregate amount of all such Non-Guarantor Subsidiary Debt that would otherwise be subject to the restrictions in Section 4.07(a) (other than Non-Guarantor Subsidiary Debt described in clauses (1) through (6) of Section 4.07(b)) does not exceed the greater of (x) $950.0 million and (y) 120% of Consolidated EBITDA for the most recent four quarters for which statements are available (trailing the date on which any indebtedness is incurred).

Section 4.08

Limitation on Sale and Lease-Back Transactions.

(1)

Holdings or such Subsidiary would be entitled under the provisions described in clauses (1) through (10) of Section 4.06(b) to create, issue, assume or guarantee indebtedness secured by a Lien on the property to be leased without having to equally and ratably secure the Notes;

(2)

Holdings or any of its Restricted Subsidiaries applies an amount equal to the amount of the net cash proceeds from the sale of the Sale and Lease-Back Transaction within 545 days after the consummation thereof to make non-mandatory prepayments on long-term indebtedness, retire long-term indebtedness or to be otherwise reinvested in the business of Holdings and its Restricted Subsidiaries (or, solely in the case of reinvestments (but not prepayments or retirements of indebtedness), committed to be so reinvested within 545 days and so reinvested within 180 days thereafter in the business of Holdings or its Restricted Subsidiaries); or

(3)

the sum of:

(a)

the Attributable Debt of Holdings and its Restricted Subsidiaries in respect of such Sale and Lease‑Back Transaction and all other Sale and Lease-Back Transactions entered into after the Issue Date (other than any such Sale and Lease-Back Transaction as would be permitted pursuant to clauses (1) or (2) of this sentence), plus

(b)

the aggregate principal amount (without duplication) of indebtedness secured by Liens then outstanding (not including any such indebtedness secured by Liens described in clauses (a) and (b) of Section 4.06) that do not equally and ratably secure the Notes (or secure Notes on a basis that is prior to other indebtedness secured thereby)

Section 4.09

Corporate Existence.

(i)

its corporate existence, and the corporate, partnership 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 Holdings, the Issuer or any such Restricted Subsidiary; and

(ii)

the rights (charter and statutory), licenses and franchises of Holdings, the Issuer and its Restricted Subsidiaries; provided, however, that Holdings shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if Holdings shall determine that the preservation thereof is no longer desirable in the conduct of the business of Holdings and its Subsidiaries, taken as a whole.

Section 4.10

Offer to Repurchase Upon Change of Control Repurchase Event.

(a)

Upon the occurrence of a Change of Control Repurchase Event, each Holder will have the right to require the Issuer to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the repurchase date (the “Change of Control Payment”). Within 30 days following any Change of Control Repurchase Event, the Issuer will send a notice to the Trustee and each Holder stating:

(1)

that a Change of Control Repurchase Event has occurred and that such Holder has the right to require the Issuer to repurchase such Holder’s Notes at a repurchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but not including, the date of repurchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date occurring on or prior to the repurchase date);

(2)

the circumstances and relevant facts and financial information regarding such Change of Control Repurchase Event;

(3)

the repurchase date (the “Change of Control Payment Date”) (which will be no earlier than 30 days nor later than 60 days from the date such notice is sent, except that such notice may be delivered more than 60 days prior to the repurchase date in connection with a Change of Control Offer or Alternate Offer made in advance of the occurrence of a Change of Control, if such repurchase date is delayed or changed to conform to the actual closing date of the Change of Control); and

(4)

if such notice is delivered in advance of the occurrence of a Change of Control, that the Change of Control Offer is conditioned upon the occurrence of such Change of Control and setting forth a brief description of the definitive agreement for the Change of Control; and

(5)

that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the applicable Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date.

(b)

On the Change of Control Payment Date, the Issuer will, to the extent lawful:

(1)

accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

(2)

deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3)

deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.

(c)

Notwithstanding anything to the contrary in this Section 4.10, the Issuer will not be required to make a Change of Control Offer with respect to the Notes upon the consummation of a Change of Control Repurchase Event if (i) a third party makes the Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in this Section 4.10 and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, (ii) notice of redemption of all outstanding notes has been given pursuant to Section 3.03 of this Indenture, unless and until there is a default in payment of the applicable redemption price or (iii) in connection with or in contemplation of any Change of Control, the Issuer has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Payment, plus accrued and unpaid interest, if any, to, but not including, the date of repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the repurchase date), and has purchased all notes properly tendered and not properly withdrawn in accordance with the terms of such Alternate Offer. Any Alternate Offer shall specify a repurchase date which shall be no earlier than 30 days nor later than 60 days from the date such Alternate Offer is made.

(d)

Notwithstanding anything to the contrary contained herein, a Change of Control Offer or Alternate Offer may be made in advance of the occurrence of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer or Alternate Offer. The closing date of any such Change of Control Offer or Alternate Offer made in advance of a Change of Control may be delayed or changed to conform to the actual closing date of the Change of Control; provided that such closing date is not earlier than 30 days nor later than 60 days from the date the Change of Control Offer or Alternate Offer notice is sent, except that such notice may be delivered more than 60 days prior to the repurchase date in connection with a Change of Control Offer or Alternate Offer made in advance of the occurrence of a Change of Control, if such repurchase date is delayed or changed to conform to the actual closing date of the Change of Control.

(e)

In the event that Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer (or any other Person making such tender offer) purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such tender offer, to redeem all of the Notes that remain outstanding following such purchase at a price in cash equal to the price offered to each Holder in such tender offer, plus, to the extent not included in the tender offer payment, accrued and unpaid interest, to but excluding the redemption date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).

Section 4.11

Issuer shall be a Subsidiary of Holdings.

Section 5.01

Merger, Consolidation and Sale of Assets.

(a)

The Issuer and Holdings may not consummate a Division as a Dividing Person and may not consolidate or merge with or into any other Person, or lease, sell or transfer all or substantially all of its property and assets unless:

(1)

the Person formed by such consolidation or into which the Issuer or Holdings, as the case may be, is merged, or the Person which acquires by lease, sale or transfer all or substantially all of the property and assets of the Issuer or Holdings or the Division Successor surviving any Division, as the case may be, is a corporation organized and existing under the laws of Australia, Switzerland, any Member State of the European Union, the United Kingdom or, any state of the United States or the District of Columbia;

(2)

(x) the Person formed by such consolidation or into which the Issuer or Holdings, as the case may be, is merged, or the Person which acquires by lease, sale or transfer all or substantially all of the property and assets of the Issuer or Holdings, as the case may be, agrees (i) in the case of the Issuer, to pay the principal of, and any premium and interest on, the Notes, assume, perform and observe all obligations, covenants and conditions of the Issuer and Holdings, as the case may be, under this Indenture and the Security Documents by executing and delivering to the Trustee and the Collateral Agent a supplemental indenture and, if applicable, joinders or supplements to the Security Documents, and (ii) in the case of Holdings, to guarantee the Notes pursuant to the terms of this Indenture or (y) in the case of a Division, where the Issuer or Holdings is the Dividing Person, the Division Successor shall remain or become a co-issuer of the Notes; and

(3)

immediately after giving effect to such transaction and treating indebtedness for borrowed money that becomes an obligation of the Issuer, Holdings or any of its Restricted Subsidiaries as a result of such transaction as having been incurred by the Issuer, Holdings or such Restricted Subsidiaries at the time of such transaction, no Default or Event of Default shall have occurred and be continuing.

(b)

In addition, notwithstanding the foregoing, the Issuer may (a) consolidate or merge with or into, or sell, lease or transfer all or substantially all of its properties or assets to, Holdings or any of its Restricted Subsidiaries or (b) merge or consolidate with an affiliate incorporated solely for the purpose of reincorporating or reorganizing the Issuer in another jurisdiction.

(c)

Nothing in the foregoing clauses shall restrict the Issuer or Holdings from consolidating with or merging with or into or winding up into an affiliate of Holdings solely for the purpose of redomiciling the Issuer or Holdings, as applicable, in Australia, Switzerland, any Member State of the European Union, the United Kingdom or, any state of the United States or the District of Columbia, so long as the amount of indebtedness outstanding of Holdings and its Restricted Subsidiaries is not increased thereby and such action would not result in any material adverse tax consequences to Holders or otherwise adversely affect in any material respect the legal rights under this Indenture of any Holder.

Section 5.02

Successor Corporation Substituted.

Section 6.01

Events of Default.

(1)

the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;

(2)

the failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise;

(3)

the failure of the Issuer or any Guarantor to comply with any covenant or agreement contained in this Indenture, which default continues for a period of 90 days after the Issuer receives written notice specifying the default (or 120 days after such a notice in the event of a Default under Section 4.03 hereof) (and demanding that such default be remedied) from the Trustee or the Holders of at least 30% of the outstanding principal amount of the Notes (including any Additional Notes subsequently issued under this Indenture) (except in the case of a default with respect to Sections 5.01 or 10.04 hereof, which will constitute an Event of Default with such notice requirement but without such passage of time requirement);

(4)

the occurrence of any default under any agreement governing indebtedness of the Issuer or any of its Significant Subsidiaries if that default:

(a)

is caused by the failure to pay at final maturity the principal amount of any indebtedness after giving effect to any applicable grace periods and any extensions of time for payment of such indebtedness; or

(b)

results in the acceleration of the final stated maturity of any such indebtedness,

(5)

Holdings or the Issuer:

(a)

commences a voluntary case,

(b)

consents to the entry of an order for relief against it in an involuntary case,

(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)

generally is not paying its debts as they become due and has lost its creditworthiness; or

(f)

commences any bankruptcy, insolvency, liquidation, moratorium, reorganization process or other process under similar laws affecting the rights of creditors in the United Kingdom; or

(6)

a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(a)

is for relief against Holdings or the Issuer in an involuntary case;

(b)

appoints a Custodian of Holdings or the Issuer; or

(c)

orders the liquidation of Holdings or the Issuer;

(7)

the failure of any Note Guarantee by Holdings or any Significant Subsidiary to be in full force and effect (other than in accordance with the terms of such Note Guarantee and this Indenture) or any of the Guarantors denies its liability under its Note Guarantee and such default continues for 10 days;

(8)

unless all the Collateral has been released from the Liens in accordance with the provisions of this Indenture and the Security Documents, the Issuer or any Guarantor asserts, in any pleading in a court of competent jurisdiction, that any such security interest is invalid or unenforceable and, in the case of any such Guarantor, the Issuer fails to cause such Guarantor to rescind such assertions within 30 days after the Issuer has actual knowledge of such assertions; or

(9)

the Issuer or any Guarantor fails to comply for 60 days after notice with its other agreements contained herein or in the Security Documents, except for a failure that would not be material to the whole of the Notes and without materially affecting the value of the Collateral taken as a whole.

Section 6.02

Acceleration.

(a)

if the rescission would not conflict with any judgment or decree;

(b)

if all existing Events of Default have been cured or waived except non-payment of principal or interest that has become due solely because of the acceleration;

(c)

to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;

(d)

if the Issuer has paid the Trustee all amounts it is owed under this Indenture; and

(e)

in the event of the cure or waiver of an Event of Default specified in clause (4) of Section 6.01 hereof; provided that the Trustee shall have received an Officer’s Certificate that such Event of Default has been cured or waived.

Section 6.03

Other Remedies.

Section 6.04

Waiver of Past Defaults.

Section 6.05

Control by Majority.

Section 6.06

Limitation on Suits.

(1)

such Holder has previously given the Trustee written notice that an Event of Default is continuing;

(2)

Holders of at least 30% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;

(3)

such Holder or Holders offer and, if requested, provide to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;

(4)

the Trustee does not pursue such remedy within 60 days after receipt of the request and the offer of security or indemnity; and

(5)

during such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a written direction inconsistent with such request.

Section 6.07

Rights of Holders of Notes to Receive Payment.

Section 6.08

Collection Suit by Trustee.

Section 6.09

Trustee May File Proofs of Claim.

Section 6.10

Priorities.

Section 6.11

Undertaking for Costs.

Section 7.01

Duties of Trustee.

(a)

If an Event of Default known to the Trustee has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

(b)

Except during the continuance of an Event of Default:

(1)

the duties of the Trustee will 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 or the other Notes Documents against the Trustee; and

(2)

in the absence of gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

(c)

The Trustee may not be relieved from liabilities for its own grossly negligent action, its own negligent failure to act, or its own willful misconduct as determined by a final order of a court of competent jurisdiction, except that:

(1)

this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

(2)

the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and

(3)

the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

(d)

Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.

(e)

No provision of this Indenture or the Notes Documents will require the Trustee to expend or risk its own funds or incur any liability. The Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense.

(f)

The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g)

Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01.

Section 7.02

Rights of Trustee and Collateral Agent.

(a)

The Trustee and Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person and need not investigate any fact or matter stated in the document.  The Trustee and Collateral Agent, if applicable, shall receive and retain financial reports of the Issuer as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Issuer.

(b)

Before the Trustee or Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. Neither the Trustee nor Collateral Agent will 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 and Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

(c)

The Trustee and Collateral Agent may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.

(d)

Neither the Trustee nor the Collateral Agent will 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.

(e)

Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.

(f)

Neither the Trustee nor the Collateral Agent will be under any 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 have offered and, if requested, provided to the Trustee or the Collateral Agent indemnity or security satisfactory to the Trustee or the Collateral Agent, as applicable, against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

(g)

The rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture, including, without limitation, its right to be indemnified, are also given to and shall be enforceable by (i) the Trustee in each of its capacities hereunder, (ii) to each agent of the Trustee, (iii) to the Collateral Agent and each other Agent, (iv) Notes Custodian, and (v) each other Person, employed to act hereunder.  Therefore, for the avoidance of doubt in any interpretation of a relevant section of this Indenture that relates to the rights, privileges, protections, immunities and benefits given to the Trustee, such section shall be construed as including each agent, custodian and each other Person employed to act hereunder.

(h)

Neither the Trustee nor the Collateral Agent shall be deemed to have knowledge of any fact or matter unless such fact or matter is actually known to a Responsible Officer.

(i)

Neither the Trustee nor the Collateral Agent shall be deemed to have notice or be charged with knowledge of any Default or Event of Default unless the Trustee or Collateral Agent, as the case may be, shall have received from the Issuer or any other obligor upon the Notes or from any Holder written notice at its respective Corporate Trust Office, and such notice references the Notes and this Indenture and states that it is a “notice of default”.  In the absence of such notice, the Trustee and Collateral Agent may conclusively assume that no Default or Event of Default exists.

(j)

Whenever in the administration of this Indenture, the Notes or the other Notes Documents, the Trustee or Collateral Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee or Collateral Agent, as the case may be, (unless other evidence be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on its part as determined by a final order of a court of competent jurisdiction, conclusively rely upon an Officer’s Certificate.

(k)

Neither the Trustee nor the Collateral Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, judgment, bond, debenture, coupon or other paper or document, but the Trustee or Collateral Agent, as the case may be, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or Collateral Agent, as the case may be, shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of Holdings and the Restricted Subsidiaries, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

(l)

The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

(m)

The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, the Notes or the other Notes Documents.

(n)

In no event shall the Trustee or Collateral Agent be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or Collateral Agent, as applicable, has been advised of the likelihood of such loss or damage.

(o)

The permissive rights of the Trustee and Collateral Agent to do things enumerated in this Indenture and the Notes Documents shall not be construed as a duty unless so specified herein.

Section 7.03

Individual Rights of Trustee.

Section 7.04

Trustee’s Disclaimer.

Section 7.05

Notice of Defaults.

Section 7.06

[Reserved].

Section 7.07

Compensation and Indemnity.

(a)

The Issuer will pay to the Trustee and the Collateral Agent from time to time such compensation for its acceptance of this Indenture and services hereunder as mutually agreed to in writing.  The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust.  The Issuer will reimburse the Trustee and the Collateral Agent 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 will include the reasonable compensation, disbursements and expenses of the Trustee’s and the Collateral Agent’s agents and counsel.

(b)

The Issuer and the Guarantors will, in the case of a Guarantor incorporated in Switzerland subject to the limitations set forth in Section 10.02(c), jointly and severally, indemnify each of the Trustee, the Collateral Agent and their directors, officers, employees and agents against any and all losses, liabilities or expenses incurred by it (including reasonable attorneys’ and agents’ fees and expenses) arising out of or in connection with the acceptance or administration of its duties under this Indenture and the other Notes Documents, including the costs and expenses of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, 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, liability or expense may be directly attributable to its gross negligence or willful misconduct, as determined by a final, non-appealable order of a court of competent jurisdiction.  Each of the Trustee and the Collateral Agent, as applicable, will notify the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee and the Collateral Agent to so notify the Issuer will not relieve the Issuer or any of the Guarantors of their obligations hereunder.  The Issuer or such Guarantor will defend the claim and the Trustee and the Collateral Agent, as applicable, will cooperate in the defense.  The Trustee and the Collateral Agent may have separate counsel and the Issuer will pay the reasonable fees and expenses of such counsel.  Neither the Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

(c)

The obligations of the Issuer and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture and the resignation and removal of the Trustee and the Collateral Agent.

(d)

To secure the Issuer’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will 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 of, premium on, if any, or interest on, particular Notes. Such lien will survive the satisfaction and discharge of this Indenture.

(e)

Without prejudice to any other rights available to the Trustee and Collateral Agent under applicable law, when the Trustee or the Collateral Agent incurs fees or expenses or renders services after an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs, the fees, 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.

Section 7.08

Replacement of Trustee.

(a)

A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

(b)

The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. 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 Issuer in writing. The Issuer may remove the Trustee if:

(1)

the Trustee fails to comply with Section 7.10 hereof;

(2)

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;

(3)

a custodian or public officer takes charge of the Trustee or its property; or

(4)

the Trustee becomes incapable of acting.

(c)

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

(d)

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee.

(e)

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(f)

A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture and the other Notes Documents. The successor Trustee will send a notice of its succession to Holders. The retiring Trustee will 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 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.

Section 7.09

Successor Trustee by Merger, etc.

Section 7.10

Eligibility; Disqualification.

Section 8.01

Option to Effect Legal Defeasance or Covenant Defeasance.

Section 8.02

Legal Defeasance and Discharge.

(1)

the rights of Holders of outstanding Notes to receive payments in respect of the principal of, and the premium, if any, and interest, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;

(2)

the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;

(3)

the rights, powers, trusts, duties and immunities of the Trustee and the Collateral Agent hereunder and the Issuer’s obligations and the obligations of the Guarantors in connection therewith; and

(4)

this Article 8, as it relates to Legal Defeasance.

Section 8.03

Covenant Defeasance.

Section 8.04

Conditions to Legal or Covenant Defeasance.

(1)

The Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars or non-callable U.S. government obligations, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on an applicable redemption date;

(2)

in the case of an election under Section 8.02 hereof, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that:

(a)

the Issuer 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,

(3)

in the case of an election under Section 8.03 hereof, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(4)

no Event of Default shall have occurred and be continuing on the date of such deposit (other than any default arising from the substantially contemporaneous incurrence of indebtedness to fund the deposit described above in clause (1));

(5)

such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture (other than any default arising from the substantially contemporaneous incurrence of indebtedness to fund the deposit described above in clause (1)) or any other material agreement or instrument to which Holdings, the Issuer or any of their Subsidiaries is a party or by which Holdings, the Issuer or any of their Subsidiaries is bound;

(6)

the Issuer must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or others;

(7)

the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and

(8)

the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that either (i) the Issuer has assigned all its ownership interest in the trust funds to the Trustee (or such other entity directed, designated and appointed by the Trustee as co-Trustee for this purpose) or (ii) the Trustee has a valid perfected security interest in the trust funds.

Section 8.05

Cash or Non-Callable U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.

Section 8.06

Repayment to Issuer.

Section 8.07

Reinstatement.

Section 9.01

Without Consent of Holders of Notes.

(1)

cure any ambiguities, defect, inconsistency or mistake;

(2)

provide for the assumption of the Issuer’s or Guarantor’s obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or Guarantor’s assets in accordance with the requirements of Article 5 hereof or Section 10.04 hereof, as applicable;

(3)

provide for uncertificated Notes in addition to or in place of certificated Notes (provided, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code);

(4)

add any Person as a Guarantor of the Notes or secure the Notes or the Note Guarantees;

(5)

comply with the rules of any applicable Depositary;

(6)

evidence and provide for the acceptance of an appointment under this Indenture of a successor Trustee, Collateral Agent or Paying Agent; provided that the successor Trustee, Collateral Agent or Paying Agent is otherwise qualified and eligible to act as such under the terms of this Indenture;

(7)

make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect in any material respect the legal rights under this Indenture of any such Holder;

(8)

conform the text of this Indenture, the Notes, any Note Guarantees, the Security Documents or the Intercreditor Agreements to any provision of the “Description of Notes” section of the Offering Circular, to the extent that the Trustee and the Collateral Agent have received an Officer’s Certificate stating that such text constitutes an unintended conflict with the corresponding provision of the “Description of Notes” section of the Offering Circular;

(9)

add additional assets as Collateral, release Collateral from the Lien pursuant to this Indenture and the Security Documents when permitted or required by this Indenture, the Security Documents and/or the Intercreditor Agreements; or

(10)

modify the Security Documents and/or the Intercreditor Agreements to secure additional extensions of credit and add additional secured creditors holding Obligations that are permitted to constitute Pari Passu Lien Obligations or Priority Lien Obligations under the Security Documents pursuant to the terms of this Indenture.

Section 9.02

With Consent of Holders of Notes.

(1)

reduce the amount of Notes whose Holders must consent to an amendment;

(2)

reduce the rate of or change the time for payment of interest, including defaulted interest, on any Note;

(3)

reduce the principal of or change the fixed maturity of any Note or change the date on which the Notes may be subject to redemption or repurchase (other than by amending the provisions of Section 4.10 hereof), or reduce the redemption or repurchase price for such Notes;

(4)

make any Note payable in money other than that stated in the Notes;

(5)

impair the legal rights of Holders of Notes to receive payments of principal and interest on the Notes, or permitting Holders of a majority in principal amount of such Notes to waive Defaults or Events of Default;

(6)

release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

(7)

make the Notes or any Note Guarantee subordinated in right of payment to other obligations.

Section 9.03

[Reserved].

Section 9.04

Revocation and Effect of Consents.

Section 9.05

Notation on or Exchange of Notes.

Section 9.06

Trustee and Collateral Agent to Sign Amendments, etc.

Section 10.01

Guarantee.

(a)

Subject to this Article 10 and the Agreed Security Principles, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and the Collateral Agent and their successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:

(1)

the principal of, premium, if any, on, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest on the Notes, if lawful, and all other obligations of the Issuer to the Holders, the Trustee or the Collateral Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof (including enforcement of this Guarantee) and thereof; and

(2)

in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

(b)

The Guarantors hereby agree that their obligations hereunder are 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 of the Notes or any amendment with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

(c)

If any Holder, the Trustee or the Collateral Agent is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either an Issuer or a Guarantor, any amount paid by either to the Trustee, the Collateral Agent or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(d)

Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders, the Trustee and the Collateral Agent, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

(e)

Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits. Each Finnish Guarantor acknowledges that entering into this Indenture is in its best interests and is based on commercial grounds.

Section 10.02

Limitation on Guarantor Liability.

(a)

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

(b)

Any Excluded Entity will not become, and will be under no obligation to become, a Guarantor on the Notes.

(c)

[Insert any other jurisdictional limitations]2

(d)

Limitation on Note Guarantees by English Guarantors. The Guarantee and/or any obligation of any Guarantor in any Notes Document does not apply to the extent that it would result in such Guarantee or obligation constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies ▇▇▇ ▇▇▇▇.

(e)

Limitation on Note Guarantees by French Guarantors. Notwithstanding anything to the contrary herein, any guarantee, indemnity, obligation and/or liability granted, incurred, undertaken, assumed or otherwise agreed by any Guarantor incorporated in France shall be limited to the following:

Section 10.03

Execution and Delivery of Note Guarantee.

Section 10.04

Guarantors May Consolidate, etc., on Certain Terms.

(a)

No Guarantor (other than Holdings, and it being understood that Holdings may consolidate or merge with or into any other Person as provided for in Section 5.01) may consummate a Division as a Dividing Person (whether or not the Issuer or Holdings is the surviving person) or consolidate or merge with or into any other Person, or sell, lease or transfer all or substantially all of the properties or assets of such Guarantor unless:

(1)

the Person formed by such consolidation or into which such Guarantor is merged, or the Person which acquires by lease, sale or transfer all or substantially all of the property and assets of such Guarantor, or the Division Successor surviving any Division, as the case may be, is a corporation organized and existing under the laws of the United States, Australia, any state in the United States or the District of Columbia, Switzerland, the United Kingdom or any member state of the European Union or, if such guarantor was organized and existing under the laws of another jurisdiction immediately prior to such transaction, the laws of such other jurisdiction (such Person, the “Successor Guarantor”);

(2)

the Successor Guarantor or the Division Successor (if other than such Guarantor) formed by such consolidation or into which such Guarantor is merged, or the Successor Guarantor which acquires by lease, sale or transfer all or substantially all of the property and assets of such Guarantor, agrees to pay the principal of, and any premium and interest on, the Notes, perform and observe all covenants and conditions of this Indenture and the Security Documents by executing and delivering to the Trustee and the Collateral Agent a Supplemental Indenture and, if applicable, joinders or supplements to the Security Documents; and

(3)

immediately after giving effect to such transaction and treating indebtedness for borrowed money that becomes an obligation of such Successor Guarantor or any of its Restricted Subsidiaries as a result of such transaction as having been incurred by such Successor Guarantor or such Restricted Subsidiaries at the time of such transaction, no Default or Event of Default shall have occurred and be continuing.

(b)

In addition, notwithstanding the foregoing, any Guarantor may (a) consolidate or merge with or into, or sell, lease or transfer all or substantially all of its properties or assets to, Holdings or any of its Restricted Subsidiaries or (b) merge or consolidate with an affiliate incorporated solely for the purpose of reincorporating or reorganizing such Guarantor in another jurisdiction.

Section 10.05

Releases.

(a)

in connection with any sale or other disposition (including by merger, liquidation or otherwise) of (i) Capital Stock of the guarantor after which such guarantor is no longer a Subsidiary of Holdings, or (ii) all or substantially all of the assets of such guarantor (other than Holdings), in each case, which sale or other disposition complies with the applicable provisions of this Indenture;

(b)

if Holdings properly designates the Guarantor (other than Holdings) as an Unrestricted Subsidiary pursuant to the terms of this Indenture;

(c)

solely in the case of a Note Guarantee created pursuant to Section 4.07 hereof upon, the release or discharge of the Note Guarantee or incurrence of indebtedness that resulted in the creation of such Note Guarantee or incurrence of indebtedness pursuant to that covenant, except a discharge or release by or as a result of payment under such Guarantee or incurrence of indebtedness;

(d)

upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance with Article 11 hereof;

(e)

upon payment in full of the aggregate principal amount of all Notes then outstanding and all other obligations under this Indenture and the Notes then due and owing;

(f)

pursuant to Article 9 hereof; or

(g)

in the case of any guarantor (other than Holdings), upon the release of such guarantee under both Credit Facilities (which release under such Credit Facilities may be conditioned upon the concurrent release of the guarantee of the Notes hereunder), except by reason of the termination or repayment in full of the Credit Facilities.

Section 11.01

Satisfaction and Discharge.

(1)

either:

(a)

all the existing authenticated and delivered Notes (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuer and repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or

(b)

all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year (including by way of irrevocable written instructions delivered by the Issuer to the Trustee to effect the redemption of the Notes), and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of such Notes, funds in amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on such Notes not already delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable written instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;

(2)

the Issuer or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

(3)

the Issuer has, upon its request for written acknowledgment of such satisfaction and discharge of this Indenture, delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.

Section 11.02

Application of Trust Money.