EX-4.1 6 tv526734_ex4-1.htm EXHIBIT 4.1

 

Exhibit 4.1

 

Execution Version

 

  

HC GROUP HOLDINGS II, LLC

prior to the consummation of the Debt Assumption, as the Initial Issuer,

 

BIOSCRIP, INC.

from and after the consummation of the Debt Assumption, as the Parent Issuer,

 

THE SUBSIDIARY ISSUERS AND GUARANTORS PARTY HERETO FROM TIME TO TIME

 

AND

 

ANKURA TRUST COMPANY, LLC

as Trustee and Collateral Agent

 

SENIOR SECURED SECOND LIEN PIK TOGGLE FLOATING RATE NOTES DUE 2027

 

 

INDENTURE

 

Dated as of August 6, 2019

  

 

 

 

 

Table of Contents

 

    Page
     
  ARTICLE I.  
     
  DEFINITIONS AND INCORPORATION BY REFERENCE  
     
Section 1.01 Definitions 1
     
Section 1.02 Interpretive Provisions 48
     
Section 1.03 Accounting Terms 51
     
Section 1.04 Rounding 51
     
Section 1.05 References to Agreements, Laws, Etc. 51
     
Section 1.06 Times of Day 51
     
Section 1.07 Timing of Payment or Performance 51
     
Section 1.08 Pro Forma Calculations 52
     
Section 1.09 Currency Generally 54
     
Section 1.10 LIBOR Discontinuation 55
     
Section 1.11 Other Definitions 55
     
  ARTICLE II.  
     
  THE NOTES  
     
Section 2.01 Form and Dating 58
     
Section 2.02 Execution and Authentication 59
     
Section 2.03 Registrar, Transfer Agent and Paying Agent 59
     
Section 2.04 Paying Agent to Hold Money in Trust 60
     
Section 2.05 Holder Lists 60
     
Section 2.06 Transfer and Exchange 60
     
Section 2.07 Mutilated, Destroyed, Lost or Stolen Notes 71
     
Section 2.08 Outstanding Notes 71
     
Section 2.09 Temporary Notes 72
     
Section 2.10 Cancellation 72
     
Section 2.11 Payment of Interest; Defaulted Interest 72
     
Section 2.12 CUSIP and ISIN Numbers 73
     
Section 2.13 Additional Issuers 73
     
  ARTICLE III.  
     
  AFFIRMATIVE COVENANTS  
     
Section 3.01 Financial Statements 74
     
Section 3.02 Quarterly Officer’s Certificate; Other Information 76

 

 i

 

 

Section 3.03 Notices 76
     
Section 3.04 Additional Information 77
     
Section 3.05 Payment of Notes 77
     
Section 3.06 Maintenance of Office or Agency 77
     
Section 3.07 Payment of Taxes 77
     
Section 3.08 Preservation of Existence 77
   
Section 3.09 Maintenance of Properties 78
     
Section 3.10 Maintenance of Insurance 78
     
Section 3.11 Compliance with Laws 78
     
Section 3.12 Books and Records 78
     
Section 3.13 Additional Collateral; Additional Guarantors 78
     
Section 3.14 Compliance with Environmental Laws 80
     
Section 3.15 Further Assurances 80
     
Section 3.16 Designation of Subsidiaries 80
     
Section 3.17 Maintenance of Ratings 80
     
Section 3.18 Use of Proceeds 80
     
Section 3.19 Post-Closing Matters 80
     
Section 3.20 Specified Beta Vendor Financing Statements 81
     
Section 3.21 Fiscal Year 81
     
Section 3.22 Quarterly Call 81
     
Section 3.23 Change of Control 81
     
Section 3.24 Offer to Purchase by Application of Net Proceeds 84
     
Section 3.25 Offer to Purchase With Net Proceeds of Prohibited Obligations. 86
     
  ARTICLE IV.  
     
  NEGATIVE COVENANTS  
     
Section 4.01 Liens 88
     
Section 4.02 [Reserved]. 95
     
Section 4.03 Indebtedness, Disqualified Equity Interests and Preferred Stock 95
     
Section 4.04 Fundamental Changes 100
     
Section 4.05 Dispositions 101
     
Section 4.06 Restricted Payments 104
     
Section 4.07 Change in Nature of Business 111
     
Section 4.08 Transactions with Affiliates 111
     
Section 4.09 Burdensome Agreements 114
     
Section 4.10 [Reserved] 115
     
Section 4.11 [Reserved] 115

 

 ii

 

 

Section 4.12 [Reserved] 115
     
Section 4.13 Modifications of Terms of Junior Financing 115
     
Section 4.14 Anti-layering 115
     
Section 4.15 Restrictions on Certain Debt Purchases 116
     
  ARTICLE V.  
     
  REDEMPTION OF SECURITIES  
     
Section 5.01 Notices and Opinions to Trustee 116
     
Section 5.02 Selection of Notes to Be Redeemed or Purchased 116
     
Section 5.03 Notice of Redemption 117
     
Section 5.04 Effect of Notice of Redemption 118
     
Section 5.05 Deposit of Redemption or Purchase Price 118
     
Section 5.06 Notes Redeemed or Purchased in Part 118
     
Section 5.07 Optional Redemption 118
     
Section 5.08 Mandatory Redemption 119
     
  ARTICLE VI.  
     
  DEFAULTS AND REMEDIES  
     
Section 6.01 Events of Default 119
     
Section 6.02 Acceleration 121
     
Section 6.03 Other Remedies 121
     
Section 6.04 Waiver of Past Defaults 122
     
Section 6.05 Control by Majority 122
     
Section 6.06 Limitation on Suits 122
     
Section 6.07 Rights of Holders to Receive Payment 122
     
Section 6.08 Collection Suit by Trustee 123
     
Section 6.09 Trustee May File Proofs of Claim 123
     
Section 6.10 Priorities 123
     
Section 6.11 Undertaking for Costs 123
     
  ARTICLE VII.  
     
  TRUSTEE AND COLLATERAL AGENT  
     
Section 7.01 Duties of Trustee 123
     
Section 7.02 Rights of Trustee 124
     
Section 7.03 Individual Rights of Trustee 126
     
Section 7.04 Trustee’s Disclaimer 126
     
Section 7.05 Notice of Defaults 126

 

 iii

 

 

Section 7.06 Notice of Listing 126
     
Section 7.07 Compensation and Indemnity 126
     
Section 7.08 Replacement of Trustee 127
     
Section 7.09 Successor Trustee by Merger 128
     
Section 7.10 Eligibility; Disqualification 128
     
Section 7.11 [Reserved]. 128
     
Section 7.12 Collateral Agent; Collateral Documents; Intercreditor Agreements 128
     
Section 7.13 Replacement of Collateral Agent 129
     
  ARTICLE VIII.  
     
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE  
     
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance 129
     
Section 8.02 Legal Defeasance and Discharge 129
     
Section 8.03 Covenant Defeasance 130
     
Section 8.04 Conditions to Legal or Covenant Defeasance 130
     
Section 8.05 Deposited Money to be Held in Trust 131
     
Section 8.06 Repayment to the Parent Issuer 131
     
Section 8.07 Reinstatement 132
     
  ARTICLE IX.  
     
  AMENDMENTS  
     
Section 9.01 Without Consent of Holders 132
     
Section 9.02 With Consent of Holders 133
     
Section 9.03 Note Purchase Agreement 135
     
Section 9.04 Revocation and Effect of Consents and Waivers 135
     
Section 9.05 Notation on or Exchange of Notes 135
     
Section 9.06 Trustee to Sign Amendments 135
     
  ARTICLE X.  
     
  NOTE GUARANTEE  
     
Section 10.01 Note Guarantee 136
     
Section 10.02 Obligations Unconditional 136
     
Section 10.03 Reinstatement 137
     
Section 10.04 Subrogation; Subordination 137
     
Section 10.05 Remedies 137
     
Section 10.06 Instrument for the Payment of Money 137
     
Section 10.07 Continuing Guarantee 137

 

 iv

 

 

Section 10.08 General Limitation on Guarantee Obligations 137
     
Section 10.09 Release of Guarantors 138
     
Section 10.10 Right of Contribution 138
     
Section 10.11 Independent Obligation 138
     
  ARTICLE XI.  
     
  Satisfaction and Discharge  
     
Section 11.01 Satisfaction and Discharge 139
     
Section 11.02 Application of Trust Money 139
     
  ARTICLE XII.  
     
  COLLATERAL  
     
Section 12.01 Collateral Documents 140
     
Section 12.02 Collateral Agent 140
     
Section 12.03 Release of Liens 142
     
Section 12.04 Suits to Protect the Collateral 142
     
Section 12.05 Authorization of Actions to be Taken 142
     
Section 12.06 [Reserved] 143
     
Section 12.07 Powers Exercisable by Receiver or Trustee 143
     
Section 12.08 Release Upon Termination 143
     
Section 12.09 Financing Statements 143
     
  ARTICLE XIII.  
     
  MISCELLANEOUS  
     
Section 13.01 Notices 144
     
Section 13.02 [Reserved]. 145
     
Section 13.03 Certificate and Opinion as to Conditions Precedent 145
     
Section 13.04 Statements Required in Certificate or Opinion 145
     
Section 13.05 When Notes Disregarded 145
     
Section 13.06 Rules by Trustee, Paying Agent, Transfer Agent and Registrar 145
     
Section 13.07 Legal Holidays 146
     
Section 13.08 Governing Law 146
     
Section 13.09 Jurisdiction 146
     
Section 13.10 Waivers of Jury Trial 146
     
Section 13.11 USA Patriot Act 146
     
Section 13.12 No Recourse Against Others 146
     
Section 13.13 Successors 146

 

 v

 

 

Section 13.14 Multiple Originals 146
     
Section 13.15 Service of Process 147
     
Section 13.16 Table of Contents; Headings 147
     
Section 13.17 Force Majeure 147
     
Section 13.18 Severability 147
     
Section 13.19 First Lien/Second Lien Intercreditor Agreement 147
     
Section 13.20 Judgment Currency 148
     
Section 13.21 Waiver of Immunities 148
     
Section 13.22 Calculation Agent 148
     
Section 13.23 Debt Assumption 148

 

EXHIBITS:

 

EXHIBIT A Form of Global Note
EXHIBIT B Form of Certificate of Transfer
EXHIBIT C Form of Certificate of Exchange
EXHIBIT D Form of Certificate of Acquiring Institutional Accredited Investors
EXHIBIT E Form of Security Agreement
EXHIBIT F Form of Supplemental Indenture to be delivered by Subsequent Guarantors
EXHIBIT G Form of Supplemental Indenture to be delivered by Subsidiary Issuers
EXHIBIT H Form of First Lien/Second Lien Intercreditor Agreement
EXHIBIT I Form of Parity Lien Intercreditor Agreement
EXHIBIT J Form of ABL Intercreditor Agreement
EXHIBIT K Form of Intercompany Note

 

SCHEDULES:

 

I Guarantors
1.01E Existing Investments
3.19 Post-Closing Matters
3.20 Specified Beta Vendor Financing Statements
4.01(b) Existing Liens
4.03(b) Existing Indebtedness
4.05 Dispositions
4.08 Existing Agreements
4.09 Existing Restrictions

  

 vi

 

 

INDENTURE (as amended, supplemented, waived or otherwise modified, the “Indenture”) dated as of August 6, 2019 among (a) HC Group Holdings II, LLC (formerly known as Beta Sub, LLC), a Delaware limited liability company (“Merger Sub 2” through the consummation of the Merger, and immediately after the consummation of the Merger and the effectiveness of the Indenture until the consummation of the Debt Assumption, the “Initial Issuer”), (b) BioScrip, Inc., a Delaware corporation (the “Company” and, upon the consummation of the Debt Assumption, the “Parent Issuer”), (c) the Subsidiary Issuers and Guarantors party hereto from time to time and (d) Ankura Trust Company, LLC, as trustee and as collateral agent.

 

WITNESSETH:

 

WHEREAS, prior to the date hereof, the Company has formed Beta Sub, Inc., a Delaware corporation, a direct wholly-owned domestic subsidiary of the Company (“Merger Sub 1”) and Merger Sub 2, a direct wholly-owned domestic subsidiary of the Company. On the Closing Date, pursuant to that certain Agreement and Plan of Merger, dated as of March 14, 2019 (together with the exhibits and disclosure schedules thereto, as amended, modified, supplemented or waived, the “Merger Agreement”), among the Company, Merger Sub 1, Merger Sub 2, HC Group Holdings II, Inc., a Delaware Corporation (“Omega”), HC Group Holdings I, LLC, a Delaware limited liability company (“Omega Parent”), and HC Group Holdings III, Inc., a Delaware corporation (“Omega III”) (solely for purposes of Section 7.3(b) thereof), (A) Merger Sub 1 merged with and into Omega with Omega as the surviving entity and (B) Omega merged with and into Merger Sub 2, with Merger Sub 2 surviving such merger (such mergers collectively referred to herein as the “Merger”);

 

WHEREAS, Merger Sub 2, as Initial Issuer proposes to issue and sell $400,000,000 aggregate principal amount of its Senior Secured Second Lien PIK Toggle Floating Rate Notes due 2027 in connection with and immediately after the consummation of the Merger and the effectiveness of this Indenture;

 

WHEREAS, immediately following such issuance, the Debt Assumption shall occur;

 

WHEREAS, the Issuers have duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes;

 

WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Issuers and authenticated and delivered hereunder, the valid obligations of the Issuers and (ii) to make this Indenture a valid agreement of the Issuers, in accordance with its terms, have been done; and

 

WHEREAS, the Guarantors party hereto have duly authorized the execution and delivery of this Indenture as guarantors of the Notes, and all things necessary (i) to make the Note Guarantees, when the Notes are executed and duly issued by the Issuers and authenticated and delivered hereunder, the valid obligations of such Guarantor and (ii) to make this Indenture a valid agreement of such Guarantor, in accordance with its terms, have been done.

 

NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:

 

ARTICLE I.

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01         Definitions.

 

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 or to be sold in reliance on Rule 144A.

 

 

 

 

ABL Agent” means Bank of America, N.A., in its capacity as “Administrative Agent” under the ABL Credit Agreement as of the Closing Date and shall include any successor agent under the ABL Financing Documents.

 

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

 

ABL Cure Amount” means the “Cure Amount” (or comparable term) under and as defined in the ABL Credit Agreement.

 

ABL Financing Documents” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

ABL Indebtedness” means Indebtedness in the form of loans that constitutes ABL Obligations.

 

ABL Intercreditor Agreement” means either (a) the ABL Intercreditor Agreement, dated as of the Closing Date, among the Initial First Lien Agent, the ABL Agent, the Collateral Agent and acknowledged and agreed by the Note Parties, substantially in the form of Exhibit J hereto or (b) a customary intercreditor agreement in form and substance reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and the Issuers, which agreement shall provide that the Liens on the ABL Priority Collateral securing the ABL Obligations shall rank senior to the Liens on the ABL Priority Collateral securing the First Lien Secured Obligations and the Secured Obligations, and the Liens on the Term Loan Priority Collateral securing the ABL Obligations shall rank junior to the Liens on the Term Loan Priority Collateral securing the First Lien Secured Obligations and the Secured Obligations, in each case with such modifications thereto as the Controlling Parties or the Collateral Agent, as applicable, and the Issuers may agree.

 

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

 

ABL Priority Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

ABL Revolving Credit Commitments” means the “Revolving Credit Commitments” (or comparable term), as defined in the ABL Credit Agreement.

 

ABL Revolving Loans” means the “Loans” (or comparable term), as defined in the ABL Credit Agreement.

 

Acquired Indebtedness” means, with respect to any specified Person,

 

(a)          Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging, amalgamating or consolidating with or into, or becoming a Restricted Subsidiary of, such specified Person, and

 

(b)          Indebtedness secured by a Lien encumbering any asset acquired by such specified Person which Indebtedness exists at the time such asset is acquired.

 

Additional First Lien Debt” means First Lien Indebtedness of the Issuers incurred after the Closing Date; provided that such Indebtedness (i) may not have any borrower, issuer or guarantor that is a Subsidiary (other than a Note Party), (ii) shall be secured only by Liens on the Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender) and (iii) shall be subject to the First Lien/Second Lien Intercreditor Agreement and the ABL Intercreditor Agreement.

 

 2 

 

 

Additional Junior Debt” means Indebtedness of the Issuers incurred after the Closing Date in the form of loans or notes that is (x) secured by Liens on the Collateral (provided that such Liens on the Term Loan Priority Collateral shall rank junior to the Liens on the Term Loan Priority Collateral securing the Secured Obligations) or (y) unsecured; provided that such Indebtedness (i) may not have any borrower, issuer or guarantor that is a Subsidiary (other than a Note Party), (ii) if secured, shall be secured only by Liens on the Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender) and (iii) if secured, shall be subject to the Junior Lien Intercreditor Agreement, the First Lien/Second Lien Intercreditor Agreement and the ABL Intercreditor Agreement, (iv) shall not have a final scheduled maturity date earlier than the Maturity Date and (v) shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereto); provided that any Additional Junior Debt consisting of a customary bridge facility may have a final scheduled maturity date earlier than the Maturity Date and a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements of clauses (iv) and (v) of this definition and (vi) subject to the foregoing clauses (i) through (v) of this definition, the terms, provisions and documentation of such Indebtedness shall be as agreed between the Issuers and the Persons providing such Indebtedness; provided that to the extent the terms of such Indebtedness are not consistent with the terms of the Notes, the terms of such Indebtedness shall either (x) not be materially more restrictive to the Issuers (as determined by the Issuers in good faith), when taken as a whole, than the terms of the Notes, except for covenants and other terms applicable to any period after the Maturity Date or (y) be reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee) (it being understood that (I) covenants and other terms applicable to any period after the Maturity Date need not be reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee) and (II) to the extent that any Previously Absent Financial Maintenance Covenant or other covenant is added for the benefit of any such Additional Second Lien Debt, no consent shall be required from the Controlling Parties or the Trustee, as applicable, to the extent that such Previously Absent Financial Maintenance Covenant or other covenant is also added for the benefit of the Notes).

 

Additional Second Lien Debt” means Second Lien Indebtedness of the Issuers incurred after the Closing Date; provided that such Indebtedness (i) may not have any borrower, issuer or guarantor that is a Subsidiary (other than a Note Party), (ii) shall be secured only by Liens on the Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender) and (iii) shall be subject to the First Lien/Second Lien Intercreditor Agreement, the Parity Lien Intercreditor Agreement and the ABL Intercreditor Agreement, (iv) shall not have a final scheduled maturity date earlier than the Maturity Date, (v) shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereto); provided that any Additional Second Lien Debt consisting of a customary bridge facility may have a final scheduled maturity date earlier than the Maturity Date and a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements of clauses (iv) and (v) of this definition, (vi) the All-In Yield applicable to such Indebtedness shall be determined by the Issuers and the applicable providers of such Indebtedness; provided, however, that the All-In Yield applicable to such Indebtedness shall not be greater than the All-In Yield payable with respect to the Notes (as amended through the date of such calculation) plus 50 basis points per annum unless the Applicable Margin (together with, as provided in the proviso below, the Adjusted LIBOR Rate Floor) with respect to the Notes is increased so as to cause the then applicable All-In Yield with respect to the Notes to equal the All-In Yield then applicable to such Indebtedness minus 50 basis points; provided that any increase in All-In Yield to the Notes due to the application or imposition of a “eurocurrency floor” or “base rate floor” or similar floor on such Indebtedness shall be effected, at the Parent Issuer’s option, (i) solely through an increase in the Adjusted LIBOR Rate Floor applicable the Notes, (ii) through an increase in the Applicable Margin or (iii) any combination of (i) and (ii) above; provided further that the Parent Issuer and the Trustee shall be permitted to amend this Indenture and the Notes without the consent of the Holders to give effect to any increase in the Applicable Margin or the Adjusted LIBOR Rate Floor pursuant to the immediately preceding proviso and (vii) subject to the foregoing clauses (i) through (vi) of this definition, the terms, provisions and documentation of such Indebtedness shall be as agreed between the Issuers and the Persons providing such Indebtedness; provided that to the extent the terms of such Indebtedness are not consistent with the terms of the Notes, the terms of such Indebtedness shall either (x) not be materially more restrictive to the Issuers (as determined by the Issuers in good faith), when taken as a whole, than the terms of the Notes, except for covenants and other terms applicable to any period after the Maturity Date or (y) be reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee) (it being understood that (I) covenants and other terms applicable to any period after the Maturity Date need not be reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee) and (II) to the extent that any Previously Absent Financial Maintenance Covenant or other covenant is added for the benefit of any such Additional Second Lien Debt, no consent shall be required from the Controlling Parties or the Trustee, as applicable, to the extent that such Previously Absent Financial Maintenance Covenant or other covenant is also added for the benefit of the Notes).

 

 3 

 

 

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. For the avoidance of doubt, none of the Agents or their respective lending affiliates, the GS Purchasers or their affiliates or the Ares Purchasers or their affiliates shall be deemed to be an Affiliate of the Issuers or any of their respective Subsidiaries.

 

Agents” means any Registrar, Paying Agent, Trustee, Collateral Agent or authenticating agent.

 

AHYDO Payment” means any mandatory prepayment or redemption pursuant to the terms of any Indebtedness that is intended or designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the meaning of Section 163(i) of the Code.

 

All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, a “eurocurrency rate” floor or “base rate” floor (with such increased amount being determined in the manner described in the proviso of this definition), or otherwise, in each case, incurred or payable by the Issuers ratably to all lenders of such Indebtedness; provided that OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity on a straight line basis (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); provided further that (x) the “All-In Yield” shall not include arrangement fees, structuring fees, commitment fees, underwriting fees, success fees, unused line fees, advisory fees, ticking fees, consent or amendment fees and any similar fees (regardless of how such fees are computed and whether shared or paid, in whole or in part, with or to any or all lenders) and any other fees not generally paid ratably to all lenders of such Indebtedness in the initial syndication thereof, (y) with respect to the Notes or any other applicable Indebtedness that includes a “eurocurrency rate” floor or “base rate” floor, (1) to the extent that the “eurocurrency rate” or “base rate” on the date that the All-In Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the All-In Yield for the Notes or such other applicable Indebtedness for the purpose of calculating the All-In Yield and (2) to the extent that the “eurocurrency rate” or “base rate” on the date that the All-In Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the All-In Yield and (z) the “All-In Yield” shall not take into account fluctuations in the underlying reference rate or fluctuations in currency valuations.

 

Applicable Holders” means the Holders of at least 25% in aggregate principal amount of the then outstanding Notes.

 

Applicable Lien” means (x) any Lien on the Collateral created pursuant to any First Lien Loan Document and (y) any Lien on the Collateral created pursuant to any ABL Financing Document.

 

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.

 

Ares” means Ares Capital Management LLC (on behalf of one or more affiliated funds, investment vehicles and/or managed accounts).

 

Ares Disposition Date” means the first date occurring after the Closing Date on which the Ares Entities (in the aggregate) cease to Beneficially Own more than 25% of the aggregate principal amount of the then outstanding Notes.

 

Ares Entity” means (a) each Ares Initial Purchaser and (b) each Other Ares Entity.

 

Ares Initial Purchaser” means Ares Management LLC and Ares Capital Management LLC.

 

 4 

 

 

Ares Purchaser” means (a) each Ares Initial Purchaser and (b) each Other Ares Purchaser.

 

Attorney Costs” means all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel.

 

Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease Obligation of any Person, the amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with GAAP (subject to Section 1.03).

 

Bankruptcy Code” or “Bankruptcy Code of the United States” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.)

 

Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “Beneficially Own,” “Beneficially Owns,” “Beneficially Owned” and “Beneficial Ownership” have corresponding meanings.

 

Beta Material Adverse Effect” means a “Beta Material Adverse Effect” as defined in the Merger Agreement.

 

Board” means the Board of Governors of the Federal Reserve System of the United States.

 

Board of Directors” means, for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the Board of Directors of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such Board of Directors.

 

Broker-Dealer Regulated Subsidiary” means any Subsidiary of the Parent Issuer that is registered as a broker-dealer under the Exchange Act or any other applicable Laws requiring such registration.

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York City; provided that when used in connection with the determination of the Applicable Rate on the applicable Determination Date, the term Business Day shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

 

Canadian Dollars” means the lawful currency of Canada.

 

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized 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 (subject to Section 1.03).

 

Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.

 

Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Issuers and the Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Parent Issuer and the Restricted Subsidiaries.

 

Captive Insurance Subsidiary” means any Subsidiary of an Issuer that is subject to regulation as an insurance company and provides insurance to an Issuer and its Restricted Subsidiaries.

 

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Cash Equivalents” means any of the following types of Investments, to the extent owned by any Issuer or any of the Restricted Subsidiaries:

 

(a)          (1) Yen, Dollars, pound sterling, Canadian Dollars or euros or any national currency of any Participating Member State of the EMU; and (2) in the case of any Foreign Subsidiary or any jurisdiction in which any Issuer or any of its Restricted Subsidiaries conducts business, such local currencies held by it from time to time in the ordinary course of business and not for speculation;

 

(b)          readily marketable obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

 

(c)          time deposits, eurodollar time deposits or demand deposits with, insured certificates of deposit, bankers’ acceptances or overnight bank deposits of, or letters of credit issued by, any commercial bank that (i) is a lender under the First Lien Credit Agreement or (ii) (A) is organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development and is a member of the Federal Reserve System, and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Bank”), in each case with maturities not exceeding 24 months from the date of acquisition thereof;

 

(d)          commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation (other than structured investment vehicles and other than corporations used in structured financing transactions) rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers), in each case with average maturities of not more than 24 months from the date of acquisition thereof;

 

(e)          marketable short-term money market and similar funds having a rating of at least P-2 (or the equivalent thereof) or A-2 (or the equivalent thereof) from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers);

 

(f)          repurchase obligations for underlying securities of the types described in clauses (b), (c) and (e) above entered into with any Approved Bank;

 

(g)          securities with average maturities of 24 months or less from the date of acquisition issued or fully guaranteed (i) by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by (ii) any foreign government, in each case, having an Investment Grade Rating from either S&P or Moody’s (or the equivalent thereof) (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers);

 

(h)          Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Issuers);

 

(i)           securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any Approved Bank;

 

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(j)           instruments equivalent to those referred to in clauses (a) through (i) above denominated in euros or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by the Parent Issuer or any of its Restricted Subsidiaries;

 

(k)          Investments, classified in accordance with GAAP as current assets of the Parent Issuer or any of its Restricted Subsidiaries, in money market investment programs which are registered under the Investment Company Act of 1940 or which are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such Investments are of the character, quality and maturity described in clauses (a) through (j) of this definition; and

 

(l)           investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (k) above.

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those specified in clause (a) above; provided that, except for amounts used to pay non-Dollar-denominated obligations of the Issuers or any of their Restricted Subsidiaries in the ordinary course of business, such amounts are converted into any currency listed in clause (a) above as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.

 

Cash Management Services” means any treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards” or “P-cards”), debit card, credit card, e-payable, cash management and similar services, foreign exchange facilities, and any automated clearing house transfer of funds.

 

Casualty Event” means any event that gives rise to the receipt by any Issuer or any of its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or Real Property (including any improvements thereon) to replace or repair such equipment, fixed assets or Real Property.

 

CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.

 

CFC Holdco” means any Domestic Subsidiary if it has no material assets other than the Equity Interests (including any Indebtedness treated as equity for U.S. federal income tax purposes) and, if applicable, Indebtedness (and any cash or Cash Equivalents related thereto) of one or more Foreign Subsidiaries that is a CFC.

 

Change of Control” shall be deemed to occur if:

 

(a)          (i) any Person (other than a Permitted Holder) or (ii) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date), but excluding any underwriters in connection with a Qualified Primary Equity Offering or a secondary public offering of Equity Interests of the Company, any employee benefit plan of such Person and its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the Closing Date), directly or indirectly, of Equity Interests representing more than thirty-five percent (35%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company (it being understood that to the extent any Permitted Holders are members of such group, any Equity Interests held by such Permitted Holders will be disregarded in calculating such beneficial ownership) and the percentage of aggregate ordinary voting power so held is greater than the percentage of the aggregate ordinary voting power represented by the Equity Interests of the Company beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders, unless, and so long as, the Permitted Holders have the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the Board of Directors of the Company; or

 

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(b)          a “change of control” (or similar event) shall occur in any document pertaining to (i) Indebtedness that constitutes First Lien Secured Obligations, ABL Obligations or other Second Lien Secured Obligations, (ii) any Additional First Lien Debt, Additional Second Lien Debt or Additional Junior Debt or (iii) any Notes Refinancing Debt or any Refinancing Indebtedness in respect of any of the foregoing, in each case of clauses (i) through (iii) with an aggregate outstanding principal amount in excess of the Threshold Amount.

 

Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or “group” shall not be deemed to beneficially own Equity Interests subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement and (ii) the right to acquire Equity Interests (so long as such Person does not have the right to direct the voting of the Equity Interests subject to such right) or to exercise any veto power in connection with the acquisition or disposition of Equity Interests will not in itself cause a party to be a beneficial owner.

 

Clearstream” means Clearstream Banking, S.A.

 

Closing Date” means August 6, 2019.

 

Closing Date Refinancing” means (A) all existing Indebtedness for borrowed money of (I) the Company and its subsidiaries pursuant to: (i) that certain First Lien Note Purchase Agreement, dated as of June 29, 2017, among the Company, as issuer, the purchasers party thereto from time to time and Wells Fargo Bank, National Association, as collateral agent, (ii) that certain Second Lien Note Purchase Agreement, dated as of June 29, 2017, among the Company, as issuer, the purchasers party thereto from time to time and Wells Fargo Bank, National Association, as collateral agent and (iii) that certain Indenture, dated February 11, 2014, by and among the Company, the guarantors named therein and U.S. Bank National Association, as trustee and (II) Omega pursuant to (i) that certain Credit Agreement, dated as of April 7, 2015, by and among Omega III, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and the other parties thereto and (ii) that certain Indenture, dated as of April 7, 2015, among Omega III, as issuer, the guarantors party thereto and U.S. Bank National Association, as trustee and collateral agent, will, in each case be repaid or satisfied or discharged, and all related guaranties and security interests with respect thereto will be terminated and released simultaneously concurrently with the initial funding of the Term B Loans, the ABL Revolving Loans (to the extent permitted in accordance with the ABL Credit Agreement) and the Second Lien Notes (or arrangements for such termination and release shall have been made) and (B) all outstanding Preferred Stock issued by the Company will be redeemed for cash (the “Preferred Redemption Cash”) and/or converted into common stock of the Company.

 

Code” means the U.S. Internal Revenue Code of 1986, and the United States Treasury Department regulations promulgated thereunder, as amended from time to time.

 

Collateral” means the “Collateral” as defined in the Security Agreement and all the “Collateral” or “Pledged Collateral” (or equivalent term) as defined in any other Collateral Document and any other assets pledged pursuant to any Collateral Document, but in any event excluding Excluded Assets.

 

Collateral and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Indenture and/or any other Notes Documents, (y) the time periods (and extensions thereof) set forth in Section 3.13 and Section 3.19 and (z) the terms of any applicable Intercreditor Agreement contemplated hereby, the requirement that:

 

(a)          the Collateral Agent shall have received each Collateral Document required to be delivered (i) on the Closing Date, pursuant to Section 3.1(a) of the Note Purchase Agreement (subject to the proviso at the end of such Section 3.1(a) of the Note Purchase Agreement) and (ii) at such time as may be designated therein, pursuant to the Collateral Documents or Sections 2.13, 3.13 or 3.15, subject, in each case, to the limitations and exceptions of this Indenture and the Collateral Documents, duly executed by each Note Party party thereto;

 

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(b)          all Secured Obligations (i) of the Issuers shall have been unconditionally guaranteed by each Restricted Subsidiary of the Parent Issuer (other than an Issuer) that is then required to be a Guarantor and (ii) of any Issuer shall have been unconditionally guaranteed by each other Issuer;

 

(c)          the Secured Obligations and the Note Guarantees shall have been secured by a second-priority security interest (subject to Liens permitted by Section 4.01) in (i) all of the Equity Interests of each wholly-owned Material Domestic Subsidiary (other than a Domestic Subsidiary described in the following clause (ii)) directly owned by any Issuer or any Guarantor, (ii) 65% of the issued and outstanding voting Equity Interests and 100% of the non-voting Equity Interests of each Restricted Subsidiary that is a wholly-owned Material Domestic Subsidiary that is directly owned by any Issuer or by any Guarantor that is a CFC Holdco and (iii) 65% of the issued and outstanding voting Equity Interests and 100% of the non-voting Equity Interests of each CFC that is a Restricted Subsidiary that is a wholly-owned Material Foreign Subsidiary that is directly owned by any Issuer or by any Guarantor, in each case other than constituting Excluded Assets pursuant to clause (vi)(D) of the definition thereof;

 

(d)          except to the extent otherwise provided hereunder, including subject to Liens permitted by Section 4.01, or under any Collateral Document, the Secured Obligations and the Note Guarantees shall have been secured by a perfected second-priority security interest (to the extent such security interest may be perfected by delivering certificated securities, filing financing statements under the Uniform Commercial Code or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office, or, to the extent required in the Security Agreement (or any other Collateral Document) or this Indenture) in the Collateral of any Issuer and each Guarantor (including accounts receivable (other than any Securitization Assets subject to a Qualified Securitization Financing), intercompany obligations, inventory, equipment, investment property, contract rights, applications and registrations of material intellectual property filed in the United States, other general intangibles and proceeds of the foregoing), in each case, (i) with the priority required by the Notes Documents and (ii) subject to exceptions and limitations otherwise set forth in this Indenture (for the avoidance of doubt, including the limitations and exceptions set forth in Section 4.01) and the Collateral Documents;

 

provided, however, that (i) the foregoing definition shall not require, and the Notes Documents shall not contain any requirements as to, the creation or perfection of pledges of, security interests in, mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with respect to any Excluded Assets (or take any other actions which are expressly not required pursuant to the definition thereof), (ii) no Note Party shall be required to prepare or procure any environmental surveys or reports with respect to the real property of any Note Party or any Restricted Subsidiary and (iii) the Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Indenture and the Collateral Documents.

 

The Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may grant extensions of time for the perfection of security interests in particular assets and the delivery of assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Note Parties on such date) or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Parent Issuer, that perfection or compliance cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Indenture, the Collateral Documents or the other Notes Documents.

 

No actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests, including any intellectual property registered in any non-U.S. jurisdiction (it being understood that there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction or any requirement to make any filings in any foreign jurisdiction, including with respect to foreign intellectual property). No actions shall be required with respect to Collateral requiring perfection through control agreements or perfection by “control” (as defined in the UCC) (including deposit accounts or other bank accounts or securities accounts), other than in respect of (x) promissory notes and other evidences of Indebtedness owed to a Note Party and required to be pledged pursuant to the Collateral Documents and (y) certificated Equity Interests of the Issuers (other than the Parent Issuer) and wholly-owned Restricted Subsidiaries that are Material Subsidiaries or Guarantors directly owned by any Issuer or by any Guarantor otherwise required to be pledged pursuant to the provisions of clause (c) of this definition of “Collateral and Guarantee Requirement” and not otherwise constituting an Excluded Asset. No Note Party shall be required to comply with the Federal Assignment of Claims Act of 1940, as amended from time to time (31 U.S.C. § 3727 et seq.), or any similar statute. The foregoing definition shall not require nor shall it permit the Collateral Agent to enter into any source code escrow arrangement or register or apply to register any intellectual property.

 

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Notwithstanding anything to the contrary herein, (x) the Issuers may cause any Subsidiary that is a Restricted Subsidiary and is not otherwise required to be a Guarantor to Guarantee the Secured Obligations in accordance with the last sentence of the definition of “Guarantor” in which case such entity shall be treated as a Guarantor hereunder for all purposes, (y) if after the Sell-Down Date and prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative extends any deadline applicable to any requirement with respect to the Term Loan Priority Collateral, such extension shall automatically be deemed to apply to the deadline for any corresponding requirement under the Notes Documents and (z) if after the Sell-Down Date and prior to the Discharge of ABL Obligations, the ABL Agent extends any deadline applicable to any requirement with respect to the ABL Priority Collateral, such extension shall automatically be deemed to apply to the deadline for any corresponding requirement under the Notes Documents.

 

Collateral Agent” means Ankura Trust Company, LLC, in its capacity as collateral agent under the Notes Documents, and any successor thereto.

 

Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, collateral assignments, Security Agreement Supplements, security agreements, pledge agreements, intellectual property security agreements or other similar agreements delivered to the Collateral Agent pursuant to Section 3.1(a)(iv) of the Note Purchase Agreement or Sections 2.13, 3.13 or 3.15 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

 

Consolidated Interest Expense” means, for any period, the sum, without duplication, of

 

(i)          (A) the cash interest expense (including that attributable to Capitalized Leases), net of cash interest income and (B) pay-in-kind interest expense, in each case of clauses (A) and (B), of the Parent Issuer and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, with respect to all outstanding Indebtedness of the Parent Issuer and the Restricted Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net cash costs (net of payments received) under interest rate Swap Contracts with respect to Indebtedness,

 

(ii)         any cash payments made during such period in respect of the accretion or accrual of discounted liabilities referred to in clause (b) below relating to Funded Debt that were amortized or accrued in a previous period, and

 

(iii)        any Restricted Payment made pursuant to Section 4.06(b)(xx)(A) the proceeds of which are used to make payments in respect of Indebtedness which payments would constitute Consolidated Interest Expense if such Indebtedness was Indebtedness of the Parent Issuer;

 

provided that there shall be excluded from Consolidated Interest Expense for any period:

 

(a)          deferred financing costs, debt issuance costs, commissions, fees (including amendment and contract fees) and expenses and, in each case, the amortization thereof, and (except as provided in clause (i)(B) of this definition) any other amounts of non-cash interest,

 

(b)          the accretion or accrual of discounted liabilities and any prepayment premium or penalty during such period,

 

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(c)          non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Contracts or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815,

 

(d)          any cash costs associated with breakage in respect of hedging agreements for interest rates,

 

(e)          all cash interest expense consisting of (x) liquidated damages for failure to timely comply with registration rights obligations and (y) one-time financing fees, all as calculated on a consolidated basis in accordance with GAAP,

 

(f)           Transaction Expenses,

 

(g)          annual agency fees paid to administrative agents and collateral agents under any credit facilities or other debt instruments or documents,

 

(h)          costs associated with obtaining Swap Contracts,

 

(i)           any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, and

 

(j)           commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Securitization Financing.

 

Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated Interest Expense (i) for any period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination and (ii) shall exclude the effects of purchase accounting or recapitalization accounting.

 

Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person and its Restricted Subsidiaries, including the amortization or write-off of (a) intangible assets and non-cash organization costs, (b) deferred financing fees, debt issuance costs, commissions, fees and expenses, bridge, commitment and other financing fees, discounts, yield and other fees and charges, (c) unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, (d) Capitalized Software Expenditures, capitalized customer acquisition costs and incentive payments and capitalized conversion costs and contract acquisition costs and (e) favorable or unfavorable lease assets or liabilities of such Person and its Restricted Subsidiaries, for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period:

 

(a)          increased (without duplication) by the following, in each case (other than in the case of clauses (a)(vii), (ix) and (xi) below) to the extent deducted (and not added back) in determining Consolidated Net Income, for such period with respect to such Person and its Restricted Subsidiaries:

 

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(i)          total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (A) amortization of OID resulting from the issuance of Indebtedness at less than par, (B) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (C) non-cash interest payments, (D) the interest component of Capitalized Leases, (E) net payments, if any, pursuant to interest Swap Contracts with respect to Indebtedness, (F) amortization of deferred financing fees, debt issuance costs, commissions and fees and (G) the interest component of any pension or other post-employment benefit expense) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations or other derivative instruments, and costs of surety bonds in connection with financing activities (whether amortized or immediately expensed), plus

 

(ii)         provision for taxes based on income or profits or capital gain, including, federal, state, local, franchise, property and similar taxes and foreign withholding taxes (including any future taxes or other levies which replace or are intended to be in lieu of such taxes and any penalties and interest related to such taxes or arising from tax examinations), plus

 

(iii)        Consolidated Depreciation and Amortization Expense for such period, plus

 

(iv)        the amount of any non-controlling interest or minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiaries, plus

 

(v)         the amount of management, monitoring, consulting, transaction, advisory and other fees (including termination and exit fees) and indemnities and expenses paid or accrued in such period under a Sponsor Management Agreement or other arrangement or otherwise in connection with management, monitoring, consulting, transaction and advisory services provided by the Permitted Holders (or other Persons with a similar interest) to such Person and its Subsidiaries (including with respect to any transaction fee payable in connection with the Merger), payments by the Parent Issuer or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the board of directors or a majority of the disinterested members of the board of directors of the Parent Issuer in good faith and fees and expenses paid to the outside directors of the Parent Issuer or their direct or indirect parent companies, in each case to the extent otherwise permitted under Section 4.08, plus

 

(vi)        any costs or expenses incurred pursuant to any management equity plan, stock option plan or any other management, director or employee benefit plan, agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of such Person or net cash proceeds of an issuance of Equity Interests of such Person (other than Disqualified Equity Interests) solely to the extent that such cash proceeds are excluded from the calculation set forth in Section 4.06(a) and shall not be, and have not been, designated an Excluded Contribution, plus

 

(vii)      the amount of “run rate” cost savings, synergies and operating expense reductions or other operating improvements (including, in each case, as a result of any Specified Transaction) projected by the Parent Issuer in good faith to result from actions taken, committed to be taken or with respect to which substantial steps have been taken or are expected in good faith to be taken no later than twenty-four (24) months after the end of such period (calculated on a pro forma basis as though such cost savings, operating expense reductions or other operating improvements and synergies had been realized on the first day of such period for which Consolidated EBITDA is being determined and if such cost savings, operating expense reductions or other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that such cost savings, operating expense reductions or other operating improvements and synergies are reasonably identifiable and factually supportable in the good faith judgment of the Parent Issuer (it is understood and agreed that “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken); provided the amounts under this clause (vii) in any Test Period, together with any increase pursuant to Section 1.08(c)(E), in each case, other than related to the Transactions, shall in the aggregate not exceed 25.0% of Consolidated EBITDA for such Test Period (calculated after giving effect to adjustments under this clause (vii) and all other applicable adjustments pursuant to this definition of “Consolidated EBITDA”); plus

 

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(viii)      [reserved]; plus

 

(ix)         cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back, plus

 

(x)           the amount of loss on sales of Securitization Assets and related assets to any Securitization Subsidiary in connection with a Qualified Securitization Financing, plus

 

(xi)         such other adjustments and addbacks (i) previously identified and set forth in the lender presentation furnished to the Initial Purchasers prior to the Closing Date, (ii) evidenced or contained in a due diligence quality of earnings report made available to the Collateral Agent prepared by (x) a “big four” nationally recognized accounting firm or (y) any other accounting firm reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or (iii) consistent with Regulation S-X,

 

(b)          decreased (without duplication) by, to the extent included in determining Consolidated Net Income for such period, any non-cash gains with respect to cash actually received in a prior period unless such cash did not increase, or was otherwise not included in, Consolidated EBITDA in any prior period.

 

Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA of the Parent Issuer under this Indenture for any period that includes any of the fiscal quarters ended June 30, 2018, September 30, 2018, December 31, 2018 and March 31, 2019, Consolidated EBITDA of the Parent Issuer for such fiscal quarters shall be deemed to be $51,635,000, $54,427,000, $63,392,000 and $44,756,000, respectively, in each case, for such periods as may be subject to addbacks and adjustments (without duplication) pursuant to Section 1.08 for the applicable Test Period.

 

For the avoidance of doubt, (i) Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with Section 1.08 and (ii) reference to Consolidated EBITDA of the Parent Issuer means such Consolidated EBITDA calculated on a consolidated basis with respect to the Parent Issuer and the Restricted Subsidiaries.

 

Consolidated First Lien Net Debt” means, as of any date of determination, any Indebtedness described in clause (a) of the definition of “Consolidated Total Net Debt” outstanding on such date plus, without duplication, the aggregate undrawn amount of Designated Revolving Commitments in effect on such date, in each case, that is secured by any Applicable Lien minus the aggregate amount of cash and Cash Equivalents (other than Restricted Cash), in each case, included on the consolidated balance sheet of the Parent Issuer and the Restricted Subsidiaries as of such date; provided that Consolidated First Lien Net Debt shall not include Indebtedness (i) in respect of letters of credit, except to the extent of obligations in respect of amounts drawn under standby letters of credit that are unreimbursed for at least two (2) Business Days after such amount is drawn, (ii) owed by Unrestricted Subsidiaries, (iii) obligations in respect of Cash Management Services and (iv) in respect of any Qualified Securitization Financing; it being understood, for the avoidance of doubt, that obligations under Swap Contracts do not constitute Consolidated First Lien Net Debt. For the avoidance of doubt, Indebtedness under the ABL Credit Agreement shall be included in Consolidated First Lien Net Debt.

 

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Consolidated Net Income” means, with respect to any Person for any period, the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication:

 

(a)          any net after-tax effect of extraordinary, non-recurring, exceptional or unusual gains or losses, charges or expenses (including all fees and expenses related thereto), losses, charges or expenses relating to any strategic initiatives (including any multi-year strategic initiatives), Transaction Expenses, restructuring costs and reserves, relocation costs, severance costs and expenses, one-time compensation charges, closing and consolidation costs for facilities, signing, upfront, retention or completion bonuses, executive recruiting and retention costs (including payments made to employees pursuant to non-compete agreements), transition costs, costs incurred in connection with non-ordinary course intellectual property development, integration costs (whether in connection with Permitted Acquisitions, other acquisitions or otherwise), business optimization expenses (including costs and expenses relating to business optimization programs, and new systems design, retention charges, system establishment costs (including information technology systems), technology upgrades and implementation costs and project start-up costs), operating expenses attributable to the implementation of cost-savings initiatives, consulting fees and curtailments and modifications to pension and post-retirement employee benefit plans, in all cases above for such period, shall be excluded;

 

(b)          the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period whether effected through a cumulative effect adjustment or a retroactive application, in each case in accordance with GAAP, shall be excluded;

 

(c)          any net after-tax effect of any fees (including finder’s fees, broker’s fees or any other fees), expenses or charges incurred during such period (including, without limitation, any premiums, make-whole or penalty payments), or any amortization thereof for such period, in connection with any Investment, Permitted Acquisition or any other acquisition (other than any such other acquisition in the ordinary course of business) permitted under this Indenture, Disposition (other than in the ordinary course of business), or other transfer (other than any such transfer in the ordinary course of business), incurrence or repayment of indebtedness (including such fees, expenses or charges related to the offering and issuance of the Initial Term Loans, ABL Revolving Credit Commitments, Initial Notes and the syndication and incurrence of any securities or credit facilities), issuance of Equity Interests, recapitalization, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of any securities, the First Lien Credit Agreement, the ABL Credit Agreement, the Notes, any other credit facilities or any other debt instrument) and including, in each case, any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken but not completed, and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or consummated (including, for the avoidance of doubt, the effects of expensing all transaction related expenses in accordance with FASB Accounting Standards Codification Topic 805, Business Combinations), shall be excluded;

 

(d)          accruals and reserves that are established or adjusted within 12 months after the Closing Date that are so required to be established or adjusted as a result of the Transactions (or within 12 months after the closing of any Permitted Acquisition or any other acquisition (other than any such other acquisition in the ordinary course of business) that are so required to be established or adjusted as a result of such Permitted Acquisition or such other acquisition) in accordance with GAAP shall be excluded;

 

(e)          any net after-tax effect of gains or losses on disposal, abandonment (including asset retirement costs) or discontinuance of disposed, abandoned or discontinued operations, as applicable, in each case other than in the ordinary course of business, as determined in good faith by the Parent Issuer, shall be excluded;

 

(f)          any net after-tax effect of gains or losses (less all fees, expenses and charges relating thereto) attributable to asset dispositions or abandonments or the sale or other disposition of any Equity Interests of any Person, in each case other than in the ordinary course of business, as determined in good faith by the Parent Issuer, shall be excluded;

 

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(g)          the Net Income for such period of any Person that is an Unrestricted Subsidiary shall be excluded, and the Net Income for such period of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be excluded; provided that Consolidated Net Income of a Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to such Person or a Restricted Subsidiary thereof in respect of such period by any Subsidiary of such Person that is not a Subsidiary or that is accounted for by the equity method of accounting;

 

(h)          solely for the purpose of determining the amount available for Restricted Payments under Section 4.06(a)(iii)(A), the Net Income for such period of any Restricted Subsidiary (other than any Issuer (other than the Parent Issuer) or any Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than restrictions that have been waived or otherwise released); provided that Consolidated Net Income of a Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or to the extent converted into cash or Cash Equivalents), or, without duplication, the amount that could have been paid in cash without violating any such restriction or requiring any such approval, to such Person in respect of such period, to the extent not already included therein;

 

(i)           effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in such Person’s consolidated financial statements pursuant to GAAP attributable to the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated Permitted Acquisition or other acquisition (other than any such other acquisition in the ordinary course of business) or Investments permitted under this Indenture consummated prior to or after the Closing Date or the amortization or write-off or write-down of any amounts thereof pursuant to GAAP, net of taxes, shall be excluded;

 

(j)           any net after-tax effect of income (loss) from the early extinguishment or conversion of (i) Indebtedness, (ii) Swap Contracts or (iii) other derivative instruments shall be excluded;

 

(k)          any impairment charge or asset write-off or write-down (other than write-offs, write-downs or impairments with respect to accounts receivable in the normal course or inventory), including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation or in connection with any disposition of assets, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded;

 

(l)           other non-cash expenses, charges and losses during such period shall be excluded, in each case other than (A) any non-cash expense, charge or loss charge either (i) expressly excluded from Consolidated Net Income pursuant to another clause of this definition or (ii) expressly added back to Consolidated EBITDA pursuant to the definition thereof or (B) any non-cash charge representing amortization of a prepaid cash item that was paid and not expensed in a prior period; provided that if any non-cash charges or expenses referred to in this clause (l) represents an accrual or reserve for potential cash item in any future period, (i) such Person may elect not to exclude such non-cash charge or expense in the current period or (ii) to the extent such Person elects to exclude such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated Net Income in such future period to such extent paid;

 

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(m)         other non-cash gains during such period shall be excluded other than (x) to the extent expressly excluded from Consolidated Net Income pursuant to another clause of this definition, (y) to the extent expressly deducted from Consolidated EBITDA pursuant to the definition thereof, or (z) any non-cash gains that represent the reversal of an accrual or reserve for any anticipated cash charges in any prior period (other than any such accrual or reserve that has been, or, had this Indenture been in effect at such time, would be, excluded in calculating Consolidated Net Income in accordance with this definition); provided that in the case of any non-cash gain, the cash receipt in such future period in respect of any non-cash gain which was excluded from the calculation of Consolidated Net Income pursuant to this clause (m) shall be added to Consolidated Net Income in such future period to such extent received;

 

(n)          any equity-based or non-cash compensation charge or expense, including any such charge or expense arising from grants of stock appreciation rights, equity incentive programs or similar rights, stock options, restricted stock or other rights to, and any cash charges associated with the rollover, acceleration, or payout of, Equity Interests by management of such Person or of a Restricted Subsidiary or any of its direct or indirect parent companies in connection with the Transactions, shall be excluded;

 

(o)          any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be paid for or reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact paid for or reimbursed within 365 days of the date of such determination (with a deduction to be applied to Consolidated Net Income in the applicable future period for any amount so added back in any prior period to the extent not so paid for or reimbursed within the applicable 365-day period), shall be excluded;

 

(p)          any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of Statement of Financial Accounting Standards Nos. 87, 106 and 112, and any other items of a similar nature, shall be excluded;

 

(q)          any non-cash compensation expense resulting from the application of FASB Accounting Standards Codification Topic 718, Compensation—Stock Compensation or FASB Accounting Standards Codification Subtopic 505-50, Equity-Based Payments to Non-Employees, shall be excluded; and

 

(r)           the following items shall be excluded:

 

(i)          any net unrealized gain or loss (after any offset) resulting in such period from Swap Contracts and the application of Accounting Standards Codification Topic 815, Derivatives and Hedging;

 

(ii)         any net unrealized gain or loss (after any offset) resulting in such period from currency transaction or translation gains or losses including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from (A) Swap Contracts for currency exchange risk and (B) resulting from intercompany indebtedness among such Person and its Restricted Subsidiaries) and any other foreign currency transaction or translation gains and losses, to the extent such gain or losses are non-cash items;

 

(iii)        any non-cash adjustments resulting from the application of Accounting Standards Codification Topic 460, Guarantees, or any comparable regulation; and

 

(iv)        earn-out obligations and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with Permitted Acquisitions whether or not a service component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments.

 

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In addition, to the extent not already included in the Consolidated Net Income of such Person in any period and so long as the expenses, charges and losses with respect to which such amounts relate have not been excluded from Consolidated Net Income of such Person in any period, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Permitted Acquisition, Investment or any sale, conveyance, transfer or other disposition of assets permitted under this Indenture.

 

Notwithstanding the foregoing, for the purpose of Section 4.06 only (other than Section 4.06(a)(iii)(D)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of, or other Returns on Investments from, Restricted Investments made by such Person and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from such Person and its Restricted Subsidiaries, any repayments of loans and advances, and releases of guarantees, which constitute Restricted Investments by such Person or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under Section 4.06(a)(iii)(D) thereof. For the avoidance of doubt, Consolidated Net Income shall be calculated, including pro forma adjustments, in accordance with Section 1.08.

 

Consolidated Senior Secured Net Debt” means, as of any date of determination, any Indebtedness described in clause (a) of the definition of “Consolidated Total Net Debt” outstanding on such date plus, without duplication, the aggregate undrawn amount of Designated Revolving Commitments in effect on such date, in each case, that is secured by a Lien on any asset or property of the Parent Issuer or any of the Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby so long as such property or assets are not deducted below) and all Additional First Lien Debt, Additional Second Lien Debt and secured Additional Junior Debt and any secured Refinancing Indebtedness in respect thereof incurred in reliance on Section 4.03(w), but excluding any such Indebtedness that is expressly junior in right of payment to the First Lien Secured Obligations, the ABL Obligations and the Secured Obligations, if any minus the aggregate amount of cash and Cash Equivalents (other than Restricted Cash), in each case, included on the consolidated balance sheet of the Parent Issuer and the Restricted Subsidiaries as of such date; provided that Consolidated Senior Secured Net Debt shall not include Indebtedness (i) in respect of letters of credit, except to the extent of obligations in respect of amounts drawn under standby letters of credit that are unreimbursed for at least two (2) Business Days after such amount is drawn, (ii) owed by Unrestricted Subsidiaries, (iii) obligations in respect of Cash Management Services and (iv) in respect of any Qualified Securitization Financing; it being understood, for the avoidance of doubt, that obligations under Swap Contracts do not constitute Consolidated Senior Secured Net Debt.

 

Consolidated Total Net Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness of the Parent Issuer and the Restricted Subsidiaries outstanding on such date, in an amount that would be reflected on a balance sheet (but excluding the notes thereto) prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting or recapitalization accounting in connection with the Transactions or any Permitted Acquisition or any other acquisition permitted under this Indenture) consisting only of Indebtedness for borrowed money and obligations in respect of Capitalized Leases or other purchase money Indebtedness, plus, without duplication, the aggregate undrawn amount of Designated Revolving Commitments in effect on such date, minus (b) the aggregate amount of cash and Cash Equivalents (other than Restricted Cash), in each case, included on the consolidated balance sheet of the Parent Issuer and the Restricted Subsidiaries as of such date; provided that Consolidated Total Net Debt shall not include Indebtedness (i) in respect of letters of credit, except to the extent of obligations in respect of amounts drawn under standby letters that are unreimbursed for at least two (2) Business Days after such amount is drawn, (ii) owed by Unrestricted Subsidiaries, (iii) obligations in respect of Cash Management Services and (iv) in respect of any Qualified Securitization Financing; it being understood, for the avoidance of doubt, that obligations under Swap Contracts do not constitute Consolidated Total Net Debt.

 

Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent,

 

(a)          to purchase any such primary obligation or any property constituting direct or indirect security therefor;

 

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(b)          to advance or supply funds

 

(i)          for the purchase or payment of any such primary obligation, or

 

(ii)         to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or

 

(c)          to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

 

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

Controlled Investment Affiliate” means, as to any Person, any other Person, other than the Sponsor, which directly or indirectly is in Control of, is Controlled by, or is under common Control with such Person and is organized by such Person (or any Person Controlling such Person) primarily for making direct or indirect equity or debt investments in an Issuer and/or other companies.

 

Controlling Parties” means (a) at any time prior to the Sell-Down Date, (i) the GS Purchasers so long as the GS Disposition Date has not occurred and (ii) the Ares Purchasers so long as the Ares Disposition Date has not occurred and (b) at any time from and after the Sell-Down Date, the Required Holders.

 

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

 

Debt Fund Affiliate” means any bona fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business and with respect to which the Sponsor and investment vehicles managed or advised by the Sponsor that are not engaged primarily in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course, have fiduciary duties to the third-party investors in such fund or investment vehicle independent of their duties to the Issuers or the Sponsor and do not make investment decisions for such entity, but shall in any event exclude the Issuers and any of their respective Subsidiaries.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Default” means any event that is, or with the passage of time or the giving of notice or both, in each case, as set forth under Section 6.01, without cure or waiver, would be an Event of Default.

 

Definitive Notes” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06, 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 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

Designated First Lien Representative” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

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Designated Preferred Stock” means Preferred Stock of the Parent Issuer or any direct or indirect parent company thereof (in each case other than Disqualified Equity Interests) that is issued for cash (other than to the Parent Issuer, a Restricted Subsidiary or an employee stock ownership plan or trust established by the Parent Issuer or any Subsidiary) and is designated as Designated Preferred Stock pursuant to an Officer’s Certificate of the Parent Issuer delivered to the Trustee on or promptly after the issue date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 4.06(a)(iii) and shall not be, and have not been, designated an Excluded Contribution.

 

Designated Revolving Commitments” means any commitments to make loans or extend credit on a revolving basis to any Issuer or any of the Restricted Subsidiaries by any Person other than any Issuer or any of the Restricted Subsidiaries that have been designated pursuant to an Officer’s Certificate of the Parent Issuer delivered to the Trustee as “Designated Revolving Commitments” until such time as the Parent Issuer subsequently delivers an Officer’s Certificate to the Trustee to the effect that such commitments shall no longer constitute “Designated Revolving Commitments.”

 

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, whether in a single transaction or a series of related transactions; provided that “Disposition” and “Dispose” shall not include any issuance by the Parent Issuer of any of its Equity Interests to another Person.

 

Discharge of ABL Obligations” has the meaning assigned to such term in the ABL Intercreditor Agreement.

 

Discharge of First Lien Secured Obligations” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than (i) solely for Qualified Equity Interests and cash in lieu of fractional shares or (ii) solely at the discretion of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Notes (and all other Secured Obligations (other than contingent indemnification obligations as to which no claim has been asserted) that are accrued and payable) and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than (i) solely for Qualified Equity Interests and cash in lieu of fractional shares or (ii) as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Notes (and all other Secured Obligations (other than contingent indemnification obligations as to which no claim has been asserted) that are accrued and payable) and the termination of the Commitments), in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date at the time of issuance of such Equity Interests; provided that any Equity Interests held by any future, current or former employee, director, officer, member of management, independent contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer, any of its Subsidiaries, any direct or indirect parent companies of the Parent Issuer or any other entity in which the Parent Issuer or any of its Restricted Subsidiaries has an Investment and is designated in good faith as an “affiliate” by the Board of Directors (or the compensation committee thereof) of the applicable Issuer, in each case pursuant to any co-invest agreement, equity subscription or shareholders’ agreement, any management, shareholder, director or employee equity plan, any stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Parent Issuer (or any direct or indirect parent thereof) or a Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s, director’s, officer’s, management member’s, independent contractor’s or consultant’s termination of employment or service, as applicable, death or disability.

 

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Dollars” or “$” refers to lawful money of the United States.

 

Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.

 

EMU” means the economic and monetary union as contemplated in the Treaty on European Union.

 

Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.

 

Environmental Laws” means any applicable Law (including common law) relating to the prevention of pollution or the protection of the Environment and natural resources, and the protection of human health and safety as it relates to Hazardous Materials, including any applicable provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and all analogous state or local statutes, and the regulations promulgated pursuant thereto.

 

Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities), excluding from the foregoing any debt securities convertible into Equity Interests, whether or not such debt securities include any right of participation with Equity Interests, until any such conversion.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with a Note Party within the meaning of Section 414(b) or (c) of the Code or Section 4001 of ERISA (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Note Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Note Party or any ERISA Affiliate from a Multiemployer Plan or written notification to a Note Party or any ERISA Affiliate that a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (d) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA); (e)  the filing of a written notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the receipt of written notice by a Note Party or any ERISA Affiliate regarding the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for, and that could reasonably be expected to result in, the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (h) the failure by a Note Party or any ERISA Affiliate to make when due any required contribution to a Multiemployer Plan, (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to a Note Party; or (j) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Note Party or any ERISA Affiliate.

 

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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, and the rules and regulations of the SEC promulgated thereunder.

 

Excluded Assets” means (i) any fee owned Real Property and any leasehold rights and interests in Real Property (including landlord or other third-party waivers, non-disturbance agreements, estoppels, bailee waivers, warehouseman waivers and collateral access letters), (ii) motor vehicles, aircraft and other assets subject to certificates of title, to the extent a Lien therein cannot be perfected by the filing of a UCC financing statement, (iii) commercial tort claims where the applicable Note Party’s reasonable expectation of recovery is less than $5,000,000, (iv) any governmental or regulatory licenses or state or local franchises, charters and authorizations to the extent that the Collateral Agent may not (or is restricted from) validly possess a security interest therein under applicable Laws (including, without limitation, rules and regulations of any Governmental Authority or agency) or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization (to the extent such consent, approval, license or authorization was not obtained (it being understood and agreed that the Note Parties shall be under no obligation to obtain such consent, approval, license or authorization)), other than to the extent such prohibition, limitation or restriction is rendered ineffective under the UCC or other applicable Law, (v) any particular asset or right under contract, if the pledge thereof or the security interest therein is prohibited or restricted by applicable Law (including any requirement to obtain the consent of any Governmental Authority or regulatory authority), other than to the extent such prohibition or restriction is rendered ineffective under the UCC or other applicable Law, (vi) (A) Margin Stock, (B) Equity Interests in any Person other than wholly-owned Restricted Subsidiaries (but, in the case of the Equity Interests of any Person that is not a wholly-owned Restricted Subsidiary, only to the extent the organizational documents or similar agreement with equity holders of such Person do not permit the pledge of such Equity Interests so long as such prohibition exists), (C) voting Equity Interests or Indebtedness treated as equity for U.S. federal income tax purposes of first tier Foreign Subsidiaries that are CFCs and first tier CFC Holdcos in excess of 65% of the issued and outstanding voting Equity Interests or Indebtedness treated as equity for U.S. federal income tax purposes thereof and (D) Equity Interests in any Broker-Dealer Regulated Subsidiary, Unrestricted Subsidiary, Captive Insurance Subsidiary, not-for-profit Subsidiary, or special purpose securitization vehicle (or similar entity), including any Securitization Subsidiary, in each case of this clause (D) that are not Guarantors, (vii) any lease, license or agreement or any property subject to such lease, license or agreement, in each case, to the extent that a grant of a security interest therein (A) would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than a Note Party after giving effect to the applicable anti-assignment provisions of the UCC) or (B) would require governmental, regulatory or third-party (other than a Note Party) approval, consent or authorization pursuant to the terms thereof (in each case after giving effect to the applicable anti-assignment provisions of the UCC) (other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition) not obtained (without any requirement to obtain such approval, consent or authorization) (in each case of clauses (A) and (B), (1) after giving effect to the applicable anti-assignment provisions of the UCC and (2) only to the extent that such limitation on such pledge or security interest is not otherwise prohibited pursuant to Section 4.09), (viii) letter of credit rights, except to the extent perfection of the security interest therein is accomplished by the filing of a UCC financing statement (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement), (ix) any intent-to-use trademark application prior to the filing, and acceptance by the U.S. Patent and Trademark Office, of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law, (x) assets where the burden or cost (including adverse tax or regulatory consequences) of obtaining a security interest therein or perfection thereof exceeds the practical benefit to the Holders afforded thereby as reasonably determined by the Parent Issuer in good faith in consultation with the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative); (xi) segregated funds held in a fiduciary capacity for others (that are not Note Parties), (xii) any property subject to a Lien permitted by Section 4.01(b), (u) (limited to Capitalized Leases, Attributable Indebtedness and purchase money security interest or other similar arrangements incurred pursuant thereto), (w) or (aa) (to the extent relating to a Lien originally incurred pursuant to Section 4.01(b), (u) or (w) subject to the limitations set forth in this clause (xii)), (xiii) any assets of any Foreign Subsidiary, CFC or CFC Holdco (including Equity Interests of any Subsidiary of such Subsidiary) and (xiv) the Cash Collateral Account (as such term is defined in each of the ABL Credit Agreement and the First Lien Credit Agreement as in effect on the Closing Date); provided, however, that Excluded Assets shall not include any Proceeds, substitutions or replacements of any Excluded Assets referred to in clause (i) through (xiv) (unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (i) through (xiv)). Notwithstanding the foregoing, for so long as a Subsidiary is an Elective Guarantor, the assets or property purported to be pledged as Collateral, or in which a security interest if purported to be granted pursuant to any Collateral Document, by such Subsidiary shall be deemed not to be Excluded Assets so long as such Subsidiary is an Elective Guarantor.

 

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Excluded Contribution” means the amount of cash capital contributions to the Parent Issuer or Net Proceeds from the sale or issuance of Qualified Equity Interests of the Parent Issuer (or issuances of debt securities that have been converted into or exchanged for Qualified Equity Interests) (other than Refunding Capital Stock, any Designated Preferred Stock, any Equity Interests issued pursuant to any management, shareholder, director or employee equity plan, any stock option plan or any other management or employee benefit plan or agreement of the Parent Issuer or any amount to the extent used in the ABL Cure Amount) and designated by the Parent Issuer to the Trustee as an Excluded Contribution pursuant to an Officer’s Certificate of the Parent Issuer delivered to the Trustee on or promptly after the date such capital contributions are made or such Equity Interests are sold or issued.

 

Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned Subsidiary of an Issuer or a Guarantor, (b) any Subsidiary that is prohibited or restricted by applicable Law or by Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition but not entered into in anticipation of such acquisition and the Collateral and Guarantee Requirement) from guaranteeing the Secured Obligations (including any requirement for governmental (including regulatory) or third-party (other than a Note Party) consent, approval, license or authorization (to the extent such consent, approval, license or authorization was not obtained (it being understood and agreed that the Note Parties shall be under no obligation to obtain such consent, approval, license or authorization))), (c) any Subsidiary where the burden or cost (including adverse tax or regulatory consequences to the Issuers or any of their direct or indirect parent companies or Subsidiaries) of obtaining a Guarantee by such Subsidiary would outweigh the practical benefit to be obtained by the Holders as reasonably determined by the Parent Issuer in good faith and, prior to the Sell-Down Date in consultation with the Controlling Parties, (d) any Foreign Subsidiary, (e) any Domestic Subsidiary that is (i) a Subsidiary of a Foreign Subsidiary that is a CFC or (ii) a CFC Holdco, (f) any not-for-profit Subsidiaries, (g) any Unrestricted Subsidiaries, (h) any special purpose securitization vehicle (or similar entity, including any Securitization Subsidiary), (i) any Captive Insurance Subsidiary, (j) any Broker-Dealer Regulated Subsidiary, (k) [reserved], (l) any Subsidiary of the Parent Issuer that is not a Material Domestic Subsidiary and (m) any Subsidiary acquired pursuant to a Permitted Acquisition or other permitted Investment that is prohibited from providing a guarantee pursuant to the terms of any permitted Indebtedness (and such prohibition was not entered into in anticipation of such acquisition); provided that no Issuer shall constitute an Excluded Subsidiary. Notwithstanding the foregoing, for so long as a Subsidiary is an Elective Guarantor, such Subsidiary shall be deemed not to be an Excluded Subsidiary.

 

fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Parent Issuer in good faith.

 

Financial Officer” means the chief financial officer, controller, treasurer, chief accounting officer or such other financial officer with equivalent duties, as appropriate, of the applicable Issuer or Issuers.

 

First Lien Credit Agreement” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

First Lien Indebtedness” means any Indebtedness in the form of loans or notes that constitutes First Lien Secured Obligations.

 

First Lien Loan Documents” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

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First Lien Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated First Lien Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Issuer for such Test Period.

 

First Lien Secured Obligations” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

First Lien/Second Lien Intercreditor Agreement” means either (a) that certain First Lien/Second Lien Intercreditor Agreement, dated as of the Closing Date, by and among Bank of America, N.A., as the First Lien Credit Agreement Administrative Agent (as defined therein), Ankura Trust Company, LLC, as the Second Lien Notes Collateral Agent (as defined therein) and acknowledged and agreed by the Note Parties, substantially in the form of Exhibit H hereto or (b) a customary first lien/second lien intercreditor agreement in form and substance reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and the Parent Issuer.

 

Fixed Charge Coverage Ratio” means, with respect to any Test Period, the ratio of (1) Consolidated EBITDA for such Test Period to (2) the Fixed Charges for such Test Period, in each case calculated on a consolidated basis with respect to the Parent Issuer and the Restricted Subsidiaries.

 

Fixed Charges” means, with respect to any Person for any period, the sum of: (a) Consolidated Interest Expense of such Person for such period; (b) all cash dividends or other cash distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such period; and (c) all cash dividends or other cash distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests during such period. For the avoidance of doubt, Fixed Charges shall be calculated, including pro forma adjustments, in accordance with Section 1.08.

 

Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of the Parent Issuer that is not a Domestic Subsidiary.

 

Funded Debt” means all Indebtedness of the Parent Issuer and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Notes.

 

GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Parent Issuer notifies the Controlling Parties (or, if after the Sell-Down Date, the Trustee) that the Parent Issuer requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through conforming changes made consistent with IFRS) on the operation of such provision (or if, prior to the Sell-Down Date, any of the Controlling Parties notifies the Parent Issuer that such Controlling Party requests an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through conforming changes made consistent with IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

 

Global Note Legend” means the legend set forth in Section 2.06(g)(2), 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) or 2.06(d).

 

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Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or European Central Bank).

 

GS Disposition Date” means the first date occurring after the Closing Date on which the GS Entities (in the aggregate) cease to Beneficially Own more than 25% of the aggregate principal amount of the then outstanding Notes.

 

GS Entity” means (a) each GS Initial Purchaser and (b) each Other GS Entity.

 

GS Initial Purchasers” means each of GS Mezzanine Partners VII, L.P., GS Mezzanine Partners VII Offshore, L.P., GS Mezzanine Partners VII Offshore Treaty, L.P., Broad Street Danish Credit Partners, L.P. and Broad Street Credit Holdings LLC.

 

GS Purchaser” means (a) each GS Initial Purchaser and (b) each Other GS Purchaser.

 

Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition, Permitted Acquisition or disposition of assets permitted under this Indenture (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

Guarantor Supplemental Indenture” means a supplemental indenture substantially in the form of Exhibit F hereto.

 

Guarantors” means (i) in the case of the Secured Obligations of the Parent Issuer, each Subsidiary Issuer and each Restricted Subsidiary of the Parent Issuer that is a Material Domestic Subsidiary (other than a Subsidiary Issuer or an Excluded Subsidiary unless such Excluded Subsidiary is then an Elective Guarantor) (including those listed on Schedule I hereto) and any Material Domestic Subsidiary that shall have become a Guarantor pursuant to Section 3.13 and (ii) in the case of the Secured Obligations of any other Note Party, the Parent Issuer, each Subsidiary Issuer and each Restricted Subsidiary of the Parent Issuer that is a Material Domestic Subsidiary (other than a Subsidiary Issuer or an Excluded Subsidiary unless such Excluded Subsidiary is then an Elective Guarantor) (including those listed on Schedule I hereto) and any Material Domestic Subsidiary that shall have become a Guarantor pursuant to Section 3.13. The Parent Issuer in its sole discretion may designate any wholly-owned Restricted Subsidiary that is not required to be a Guarantor (such a Restricted Subsidiary, an “Elective Guarantor”) to Guarantee the Secured Obligations by causing such Restricted Subsidiary to execute this Indenture on the Closing Date or a Guarantor Supplemental Indenture, and any such Restricted Subsidiary shall be a Guarantor and Note Party for all purposes; provided further that prior to the Sell-Down Date, the Controlling Parties may prohibit a Foreign Subsidiary from becoming an Elective Guarantor if the Controlling Parties determine, in their reasonable credit judgment but after consultation with the Parent Issuer, that such Foreign Subsidiary would not provide customary credit support for the Secured Obligations, which determination may be based upon (A) the amount and enforceability of the Note Guarantee that would be provided by the proposed Elective Guarantor, (B) the enforceability of any security interest that may be granted with respect to any Collateral located in the relevant jurisdiction and/or (C) such proposed Elective Guarantor is organized in a country that is not a member of the Organization for Economic Cooperation and Development or that is the target of any U.S. sanctions program administered by OFAC.

 

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Hazardous Materials” means all materials, pollutants, contaminants, chemicals, compounds, constituents, substances or wastes, in any form, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, or toxic mold that are regulated pursuant to, or which could give rise to liability under, applicable Environmental Law based on their dangerous or deleterious properties.

 

Holder” means the Person in whose name a Note is registered on the Registrar’s books.

 

IAI 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 or to be sold to Institutional Accredited Investors.

 

IFRS” means international accounting standards as promulgated by the International Accounting Standards Board.

 

Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.

 

Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:

 

(a)          all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)          the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

 

(c)          net obligations of such Person under any Swap Contract;

 

(d)          all obligations of such Person to pay the deferred purchase price of property (other than (i) trade accounts and accrued expenses payable in the ordinary course of business, (ii) any earn-out obligations, including deferred or other contingent purchase price obligations (including deferred performance incentives, whether or not a service component is required from the transferor or its related party), until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and is not paid after becoming due and payable and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business);

 

(e)          all Attributable Indebtedness;

 

(f)           all obligations of such Person in respect of Disqualified Equity Interests, if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP;

 

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(g)          indebtedness (excluding prepaid interest thereon) of the types described in clauses (a) through (f) above secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; and

 

(h)          to the extent not otherwise included above, all Guarantees of such Person in respect of Indebtedness described in clauses (a) through (g) in respect of any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt, (B) in the case of the Parent Issuer and the Restricted Subsidiaries, exclude all intercompany Indebtedness in the ordinary course of business having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and (C) exclude (i) deferred compensation payable to officers, directors or employees of such Person or any of its Subsidiaries, (ii) deferred rent, deferred revenue and deferred taxes, in each case, in the ordinary course of business, (iii) payments and distributions to dissenting stockholders of such Person pursuant to applicable law, (iv) any obligation to pay the redemption price for the Company’s Preferred Stock with Preferred Redemption Cash, (v) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (vi) trade liabilities and accounts and accrued expenses payable in the ordinary course of business, (vii) any purchase price adjustment or earn-out obligation until such obligation is not paid after becoming due and payable and (viii) accruals for payroll, obligations under employment arrangements and other liabilities accrued in the ordinary course of business. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (g) that is expressly made non-recourse or limited recourse (limited solely to the assets securing such Indebtedness) to such Person shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuers, qualified to perform the task for which it has been engaged and that is independent of the Issuers and their Affiliates.

 

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

 

Initial Purchaser” means (a) each GS Initial Purchaser and (b) each Ares Initial Purchaser.

 

Initial First Lien Agent” means Bank of America, N.A., in its capacity as administrative agent and/or collateral agent under the First Lien Credit Agreement.

 

Initial Notes” means the $400,000,000 in aggregate principal amount of Senior Secured Second Lien PIK Toggle Floating Rate Notes due 2027 of the Issuers issued under this Indenture on the Closing Date.

 

Initial Term Loans” means the Term B Loans incurred by the Issuers on the Closing Date in an aggregate principal amount of $925,000,000.

 

Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a QIB.

 

Intellectual Property Security Agreement” has the meaning specified in the Security Agreement.

 

Intercompany Note” means a promissory note substantially in the form of Exhibit K or such other form as agreed by the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent).

 

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Intercreditor Agreements” means the First Lien/Second Lien Intercreditor Agreement, the ABL Intercreditor Agreement, the Parity Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement and, to the extent permitted under this Indenture, any other lien subordination and intercreditor arrangement reasonably satisfactory to the Issuers and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent), collectively, in each case to the extent then in effect.

 

Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, credit card and debit card receivables, trade credit, advances to customers, commission, travel and similar advances to any future, present or former employees, directors, officers, independent contractors, members of management, manufacturers and consultants, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business, book of business or division of such Person (excluding, in the case of the Parent Issuer and the Restricted Subsidiaries, intercompany advances or indebtedness in the ordinary course of business having a term not exceeding 364 days (inclusive of any roll over or extensions of terms)). For purposes of the definitions of “Unrestricted Subsidiary” and “Permitted Investments” and the covenants described under Sections 3.16 and 4.06:

 

(1)          “Investments” shall include the portion (proportionate to the Parent Issuer’s Equity Interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:

 

(a)          the Parent Issuer’s “Investment” in such Subsidiary at the time of such redesignation; less

 

(b)          the portion (proportionate to the Parent Issuer’s Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and

 

(2)          any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer.

 

For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment, less any Returns in respect of such Investment; provided that in lieu of treating any Returns as a deduction to the amount of any applicable Investment, the Parent Issuer may instead elect that such Returns be used to increase Section 4.06(a)(iii)(D)(1) to the extent such Returns would otherwise be permitted to increase Section 4.06(a)(iii)(D)(1) pursuant to the terms thereof.

 

Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating by any other nationally recognized statistical rating agency selected by the Issuers).

 

Investment Grade Securities” means:

 

(a)          securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

 

(b)          debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or debt instruments constituting loans or advances among the Issuers and the Subsidiaries and their respective equity holders;

 

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(c)          investments in any fund that invests exclusively in investments of the type described in clauses (a) and (b) which fund may also hold immaterial amounts of cash pending investment or distribution; and

 

(d)          corresponding instruments in countries other than the United States customarily utilized for high quality investments.

 

IP Rights” has the meaning specified in the Note Purchase Agreement.

 

Issuer” means the Initial Issuer, the Parent Issuer and any wholly-owned Domestic Subsidiary of the Parent Issuer that is treated as a corporation for U.S. federal tax purposes and that after the Closing Date becomes an Issuer by executing an Issuer Supplemental Indenture in accordance with the terms hereof (but excluding any Subsidiary of the Parent Issuer that ceases to be a party hereto in accordance with the terms of Section 10.09); provided that any Subsidiary that is or has become an Issuer (a “Subsidiary Issuer”) may have its status as an Issuer terminated by delivering a notice to the Trustee from the Issuers and such Subsidiary Issuer electing to terminate such Subsidiary’s status as an Issuer, provided further that no such termination shall affect (and such notice shall expressly provide that): (x) any obligation of such Subsidiary as a Guarantor or as a grantor or pledgor under any Notes Document or (y) any Lien granted by such Subsidiary which Liens shall continue in full force and effect after giving effect to such termination.

 

Issuer Supplemental Indenture” means a supplemental indenture substantially in the form of Exhibit G hereto.

 

Junior Financing” means any Indebtedness (other than the ABL Obligations) that (i) constitutes any Subordinated Indebtedness having an aggregate amount outstanding in excess of the Threshold Amount and (ii) to the extent such Indebtedness is secured by Liens on the Term Loan Priority Collateral, such Liens on the Term Loan Priority Collateral rank junior to the Liens on the Term Loan Priority Collateral securing the Secured Obligations, which Indebtedness has an aggregate amount outstanding in excess of the Threshold Amount.

 

Junior Financing Documentation” means any documentation governing any Junior Financing (other than the First Lien/Second Lien Intercreditor Agreement or any other lien subordination and intercreditor arrangement with respect to such Junior Financing to which the Collateral Agent is a party).

 

Junior Lien Intercreditor Agreement” means a customary intercreditor agreement in form and substance reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and the Parent Issuer, which agreement shall provide that the Liens on the Collateral securing the applicable Indebtedness shall rank junior to the Lien on the Collateral securing the Secured Obligations, in each case with such modifications thereto as the Controlling Parties or the Collateral Agent, as applicable, and the Parent Issuer may agree.

 

Junior Lien Notes Refinancing Debt” means Notes Refinancing Debt that with respect to the Term Loan Priority Collateral is secured on a junior basis relative to the Secured Obligations.

 

Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

 

Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing); provided that in no event shall an operating lease in and of itself be deemed a Lien.

 

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Limited Condition Transaction” means any (1) acquisition whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (2) repurchase, repayment or prepayment of Indebtedness that requires the delivery of an irrevocable notice (provided that such notice may be conditioned on the occurrence of another transaction) or (3) Restricted Payment (but in the case of this clause (3), solely to the extent such Restricted Payment is consummated in connection with a transaction separately subject to clause (1) or (2) above).

 

Limited Originator Recourse” means a letter of credit, cash collateral account or other such credit enhancement issued in connection with the incurrence of Indebtedness by a Securitization Subsidiary under a Qualified Securitization Financing

 

Management Stockholders” means any present or former members of management of the Parent Issuer or any Restricted Subsidiary who are investors in the Parent Issuer or any direct or indirect parent thereof, including, for the avoidance of doubt any future members of management of the Parent Issuer or any Restricted Subsidiary who are investors in the Parent Issuer or any direct or indirect parent thereof, including, for the avoidance of doubt any future member of management who is elected, appointed or hired when the Permitted Holders (excluding such future Person) have the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the Board of Directors of the Parent Issuer.

 

Margin Stock” shall have the meaning assigned to such term in Regulation U of the Board, or any successor thereto.

 

Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common Equity Interests of the Parent Issuer on the date of the declaration of a Restricted Payment permitted pursuant to Section 4.06(b)(viii) multiplied by (ii) the arithmetic mean of the closing prices per share of such common Equity Interests on the principal securities exchange on which such common Equity Interests are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.

 

Material Adverse Effect” means (I) on the Closing Date, for the representations with respect to the Company and its subsidiaries, a Beta Material Adverse Effect and (II) on the Closing Date (other than as described in clause (I)) and after the Closing Date (a) a material and adverse effect on the business, financial condition or results of operations of the Parent Issuer and its Restricted Subsidiaries, taken as a whole, (b) a material and adverse effect on the rights or remedies, taken as a whole, of the Secured Parties under the Notes Documents or (c) a material and adverse effect on the ability of the Note Parties, taken as a whole, to perform their material payment obligations under the Notes Documents.

 

Material Domestic Subsidiary” means, at any date of determination, each of the Domestic Subsidiaries of the Parent Issuer (a) whose total assets (when consolidated with the total assets of each of its Restricted Subsidiaries) at the last day of the most recent Test Period were equal to or greater than 3.75% of Total Assets at such date or (b) whose gross revenues (when consolidated with the gross revenues of each of its Restricted Subsidiaries) for such Test Period were equal to or greater than 3.75% of the consolidated gross revenues of the Parent Issuer and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, for the purposes of Section 3.13, Domestic Subsidiaries not meeting the thresholds set forth in clauses (a) or (b) that are not Guarantors or previously designated as a Material Domestic Subsidiary pursuant to clause (i) below comprise in the aggregate more than 7.50% of Total Assets as of the end of the most recently ended fiscal quarter of the Parent Issuer for which financial statements have been delivered pursuant to Section 3.01 or more than 7.50% of the consolidated gross revenues of the Parent Issuer and the Restricted Subsidiaries for such Test Period, then the Parent Issuer shall, not later than forty-five (45) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Indenture (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in their reasonable discretion), (i) designate in writing to the Trustee one or more of such Domestic Subsidiaries as “Material Domestic Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 3.13 applicable to such Subsidiary.

 

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Material Foreign Subsidiary” means, at any date of determination, each of the Foreign Subsidiaries of the Parent Issuer (a) whose total assets (when consolidated with the total assets of each of its Restricted Subsidiaries) at the last day of the most recent Test Period were equal to or greater than 3.75% of Total Assets at such date or (b) whose gross revenues (when consolidated with the gross revenues of each of its Restricted Subsidiaries) for such Test Period were equal to or greater than 3.75% of the consolidated gross revenues of the Parent Issuer and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided for the purposes of the provisions of the definition of “Collateral and Guarantee Requirement” that if, at any time and from time to time after the Closing Date, Foreign Subsidiaries not meeting the thresholds set forth in clauses (a) or (b) and not otherwise previously designated as a Material Foreign Subsidiary pursuant to clause (i) below comprise in the aggregate more than 7.50% of Total Assets as of the end of the most recently ended fiscal quarter of the Parent Issuer for which financial statements have been delivered pursuant to Section 3.01 or more than 7.50% of the consolidated gross revenues of the Parent Issuer and the Restricted Subsidiaries for such Test Period, then the Parent Issuer shall, not later than forty-five (45) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Indenture (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in their reasonable discretion), designate in writing to the Trustee one or more of such Foreign Subsidiaries as “Material Foreign Subsidiaries” to the extent required such that the foregoing condition ceases to be true.

 

Material IP” means intellectual property owned by the Note Parties that, if disposed, would reasonably be expected to result in a Material Adverse Effect.

 

Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign Subsidiary. For the avoidance of doubt, no formal designation of a Material Subsidiary (other than for purposes of Section 3.13 and complying with the provisions of the definition of “Collateral and Guarantee Requirement” in each case, as set forth in the definitions of Material Domestic Subsidiary and Material Foreign Subsidiary) shall be required.

 

Maturity Date” means August 6, 2027.

 

Maximum Additional First Lien Debt Amount” means (A) the greater of (I) $175,000,000 and (II) 75% of Trailing Four Quarter Consolidated EBITDA minus the aggregate amount of Additional Second Lien Debt and Additional Junior Debt incurred in reliance on clause (A) of the definition of “Maximum Additional Second Lien/Junior Debt Amount” in this Indenture plus (B) an amount equal to the sum of (I) the aggregate principal amount of all voluntary prepayments (including through debt buybacks (whether through open market purchases or otherwise) and Dutch auctions) of (x) Indebtedness in the form of term loans or notes that constitutes First Lien Secured Obligations and (y) to the extent incurred in reliance on clause (A) of the definition of “Maximum Additional Second Lien/Junior Debt Amount” in this Indenture, Indebtedness in the form of term loans or notes that constitutes Second Lien Secured Obligations or that is unsecured and (II) the aggregate principal amount of permanent voluntary commitment reductions under the ABL Credit Agreement in connection with the termination of the ABL Credit Agreement or any other revolving facility the Indebtedness under which constitutes First Lien Secured Obligations, in each case, made or effectuated after the Closing Date (provided that voluntary permanent commitment reductions with respect to the ABL Credit Agreement may only be utilized to incur revolving credit commitments and not term loan or note commitments), in each case except to the extent financed with proceeds of long-term Indebtedness (other than revolving Indebtedness); provided that to the extent any voluntary prepayment, repurchase or commitment reduction builds capacity to incur Indebtedness pursuant to this clause (B) and clause (B) of the definition of “Maximum Additional Second Lien/Junior Debt Amount” in this Indenture, such capacity pursuant to this clause (B) shall be reduced by the amount of any Indebtedness incurred in reliance on such capacity pursuant clause (B) of the definition of “Maximum Additional Second Lien/Junior Debt Amount” in this Indenture, plus (C) an unlimited additional amount of Additional First Lien Debt so long as the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a Pro Forma Basis after giving effect to any such incurrence does not exceed 3.95 to 1.00 (in the case of an incurrence of revolving credit commitments, such ratio determined only at the time the relevant commitment is established and assuming such then incurred revolving credit commitments are fully drawn and calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Indebtedness then proposed to be incurred); provided that (I) the Issuers may elect to use clause (C) of this definition prior to clause (A) or (B) and regardless of whether there is capacity under clause (A) or (B), and if clauses (A), (B) and (C) are available and the Issuers do not make an election, the Issuers will be deemed to have elected clause (C), (II) the Issuers may reclassify utilizations among clauses (A), (B) and (C) of this definition if, at the time of such reclassification, the Issuers would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified, and (III) if amounts incurred under clause (A) or (B) of this definition are incurred concurrently with the incurrence of Indebtedness (in each case, including any unused commitments obtained) in reliance on clauses (A) or (B) of this definition or the definition of “Maximum Additional Second Lien/Junior Debt Amount” in this Indenture or any amounts pursuant to a fixed dollar basket in Section 4.03, the First Lien Net Leverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clauses (A) or (B) or such fixed dollar basket in Section 4.03.

 

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Maximum Additional Second Lien/Junior Debt Amount” means (A) the greater of (I) $175,000,000 and (II) 75% of Trailing Four Quarter Consolidated EBITDA minus the aggregate amount of Additional First Lien Debt incurred in reliance on clause (A) of the definition of “Maximum Additional First Lien Debt Amount” in this Indenture plus (B) an amount equal to the sum of (I) the aggregate principal amount of all voluntary prepayments (including through debt buybacks (whether through open market purchases or otherwise) and Dutch auctions) of (x) Indebtedness in the form of term loans or notes that constitutes First Lien Secured Obligations or Second Lien Secured Obligations and (y) to the extent incurred in reliance on clause (A) of this definition, Indebtedness in the form of term loans or notes that is secured on a junior lien basis to the Secured Obligations or is unsecured and (II) the aggregate principal amount of permanent voluntary commitment reductions under the ABL Credit Agreement in connection with the termination of the ABL Credit Agreement or any other revolving facility the Indebtedness under which constitutes First Lien Secured Obligations, in each case, made or effectuated after the Closing Date (provided that voluntary permanent commitment reductions with respect to the ABL Credit Agreement may only be utilized to incur revolving credit commitments and not term loan commitments), in each case except to the extent financed with proceeds of long-term Indebtedness (other than revolving Indebtedness); provided that to the extent any voluntary prepayment, repurchase or commitment reduction builds capacity to incur Indebtedness pursuant to this clause (B) and clause (B) of the definition of “Maximum Additional First Lien Debt Amount” in this Indenture, such capacity pursuant to this clause (B) shall be reduced by the amount of any Indebtedness incurred in reliance on such capacity pursuant clause (B) of the definition of “Maximum Additional First Lien Debt Amount” in this Indenture, plus (C) (x) in the case of Additional Second Lien Debt or Additional Junior Debt that is secured, an unlimited additional amount of Additional Second Lien Debt or Additional Junior Debt that is secured so long as the Senior Secured Net Leverage Ratio for the Test Period most recently ended calculated on a Pro Forma Basis after giving effect to any such incurrence does not exceed 5.75 to 1.00 (in the case of an incurrence of revolving credit commitments, such ratio determined only at the time the relevant commitment is established and assuming such then incurred revolving credit commitments are fully drawn and calculating the Senior Secured Net Leverage Ratio without netting the cash proceeds from such Indebtedness then proposed to be incurred) and (y) in the case of Additional Junior Debt that is unsecured, either (1) the Fixed Charge Coverage Ratio for the Test Period most recently ended calculated on a Pro Forma Basis after giving effect to any such incurrence is not less than 2.00 to 1.00 (in the case of an incurrence of revolving credit commitments, such ratio determined only at the time the relevant commitment is established and assuming such then incurred revolving credit commitments are fully drawn) or (2) if incurred in connection with a Permitted Acquisition or other Investment, the Fixed Charge Coverage Ratio on a Pro Forma Basis does not decrease immediately after giving effect to such Permitted Acquisition, Investment or other Specified Transaction; provided that (I) the Issuers may elect to use clause (C) of this definition prior to clause (A) or (B) and regardless of whether there is capacity under clause (A) or (B), and if clauses (A), (B) and (C) are available and the Issuers do not make an election, the Issuers will be deemed to have elected clause (C), (II) the Issuers may reclassify utilizations among clauses (A), (B) and (C) of this definition if, at the time of such reclassification, the Issuers would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified, and (III) if amounts incurred under clause (A) or (B) of this definition are incurred concurrently with the incurrence of Indebtedness (in each case, including any unused commitments obtained) in reliance on clauses (A) or (B) of this definition or the definition of “Maximum Additional First Lien Debt Amount” in this Indenture or any amounts pursuant to a fixed dollar basket in Section 4.03, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clauses (A) or (B) of this definition or the definition of “Maximum Additional First Lien Debt Amount” in this Indenture or such fixed dollar basket in Section 4.03.

 

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which a Note Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six plan years, has made or been obligated to make contributions.

 

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Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

 

Net Proceeds” means:

 

(a)          100% of the cash proceeds actually received by the Parent Issuer or any of the Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Disposition or Casualty Event, net of (i) out-of-pocket fees and expenses actually incurred in connection therewith (including attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and expenses actually incurred in connection therewith), (ii) the principal amount of any Indebtedness (other than Indebtedness owed to the Parent Issuer or a Restricted Subsidiary) that is secured by a Lien (other than a Lien on Term Loan Priority Collateral that ranks pari passu with or is junior to the Liens on the Term Loan Priority Collateral securing the Secured Obligations) on the asset subject to such Disposition or Casualty Event and that is required to be repaid in connection with such Disposition or Casualty Event (including ABL Priority Collateral required to repay ABL Obligations), together with any applicable premium, penalty, interest, breakage costs and other similar amounts, (iii) in the case of any Disposition or Casualty Event by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iii)) attributable to minority interests and not available for distribution to or for the account of the Parent Issuer or a wholly-owned Restricted Subsidiary as a result thereof, (iv) Taxes paid or reasonably estimated to be payable, directly or indirectly, as a result thereof (including Taxes that are or would be imposed on the distribution or repatriation of any such Net Proceeds), (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (iv) above) (x) related to any of the applicable assets and (y) retained by the Parent Issuer or any of the Restricted Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations and (vi) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to the Parent Issuer or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Proceeds); provided that, at the option of the Parent Issuer, the Parent Issuer may use all or any portion of such proceeds to (x) repay or prepay First Lien Indebtedness or ABL Indebtedness so long as, in the case of any repayment or prepayment of revolving borrowings constituting First Lien Indebtedness or ABL Indebtedness, the revolving commitments to fund such borrowings are permanently reduced by the amount of such repayment or prepayment or (y) acquire, maintain, develop, construct, improve, upgrade, replace or repair assets used or useful in the business of the Parent Issuer or any of its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition of all or substantially all the assets of, or all or a portion of the Equity Interests in, a Person or division or line of business of a Person (or any subsequent investment made in a Person, division or line of business previously acquired), in each case of clauses (x) and (y), within 12 months of such receipt, and such proceeds shall not constitute Net Proceeds except to the extent not, within 12 months of such receipt, so used pursuant to clause (x) or (y) or, in the case of any use of such proceeds pursuant to clause (y), contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 12 month period but within such 12-month period are contractually committed to be used pursuant to clause (y), then upon the termination of such contract or if such Net Proceeds are not so used pursuant to clause (y) within such 12-month period or, if later, 180 days from the entry into such contractual commitment, then such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso (such period, the “Repayment/Reinvestment Period”)); provided further that no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless (x) such Net Proceeds resulting therefrom shall exceed $10,000,000 or (y) in any fiscal year, the aggregate Net Proceeds resulting therefrom shall exceed $20,000,000 in such fiscal year (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (a)); and

 

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(b)          100% of the cash proceeds from the incurrence, issuance or sale by the Parent Issuer or any of the Restricted Subsidiaries of any Indebtedness, or any sale or issuance of Qualified Equity Interests by the Parent Issuer or any direct or indirect parent of the Parent Issuer, net of all taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees, underwriting fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such incurrence, issuance or sale; provided that with respect to any sale or issuance of Qualified Equity Interests (other than in the form of Disqualified Equity Interests) by any direct or indirect parent of an Issuer only the amount of cash from such sale or issuance of Qualified Equity Interests contributed to the capital of an Issuer shall constitute the Net Proceeds of such sale or issuance.

 

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Parent Issuer or any of its Restricted Subsidiaries shall be disregarded.

 

Non-Note Party” means any Restricted Subsidiary that is not a Note Party.

 

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

 

Note Guarantee” means the guarantee pursuant to Article X by the Issuers and each Guarantor of the Guaranteed Note Obligations.

 

Note Purchase Agreement” means the Note Purchase Agreement, dated as of August 6, 2019, among the GS Purchasers party thereto from time to time, the Ares Purchasers party thereto from time to time, the Initial Issuer, the Parent Issuer and the other Subsidiary Issuers and other Guarantors party thereto.

 

Note Party” means each Issuer and each Guarantor.

 

Notes” means any of the Senior Secured Second Lien PIK Toggle Floating Rate Notes due 2027 authenticated and delivered under this Indenture, including, for the avoidance of doubt, the Initial Notes. All Notes shall vote together as one series of Notes under this Indenture.

 

Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC) or any successor Person thereto, and shall initially be the Trustee or its agent.

 

Notes Documents” means this Indenture (including any supplemental indenture hereto), the Notes, the Note Guarantees, the Note Purchase Agreement (including any joinder agreement thereto), the Intercreditor Agreements and the Collateral Documents.

 

Notes Refinancing Debt” means (x) secured Indebtedness (including any Registered Equivalent Notes) of the Issuers in the form of one or more series of senior secured notes or loans that in respect of Liens on the Term Loan Priority Collateral are secured on a pari passu basis with the Secured Obligations, (y) secured Indebtedness (including any Registered Equivalent Notes) of the Issuers in the form of one or more series of secured notes or loans that in respect of the Liens on the Term Loan Priority Collateral are secured by a third lien basis with respect to the Secured Obligations (or on another junior lien priority basis relative to the Secured Obligations with respect to the Term Loan Priority Collateral) and (z) unsecured or subordinated Indebtedness (including any Registered Equivalent Notes) of the Issuers in the form of one or more series of unsecured or subordinated notes or loans, in each case of clauses (x), (y) and (z), issued, incurred or otherwise obtained in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any Notes: provided that (i) such Indebtedness shall not (other than any such Indebtedness consisting of a customary bridge facility so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies this criteria) have a final scheduled maturity date prior to the Maturity Date or have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereto), (ii) such Indebtedness shall rank pari passu with, or junior in right of payment to, the Notes, (iii) such Indebtedness shall be either (1) secured only by Liens on the Collateral, which Liens (A) rank on a pari passu or junior basis relative to the Liens securing the Secured Obligations in respect of the Term Loan Priority Collateral and (B) are subject to the ABL Intercreditor Agreement, the First Lien/Second Lien Intercreditor Agreement and, as applicable, the Parity Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent), as applicable or (2) unsecured, (iv) such Indebtedness shall not have any obligors that are not Note Parties, (v) such Indebtedness shall not have a greater principal amount than the principal amount of the Notes being refinanced plus any accrued but unpaid interest on such Notes being refinanced, plus existing commitments unutilized to purchase Notes under this Indenture, to the extent such commitments are permanently reduced, plus the amount of any tender premium or penalty or premium required to be paid under the Notes Documents in connection therewith and any defeasance costs and any fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Indebtedness plus other amounts permitted to be incurred under Section 4.03, (vi) subject to the foregoing clauses (i) through (v) of this definition, shall (x) reflect market terms and conditions (taken as a whole) at the time of such refinancing (as determined by the Parent Issuer in good faith) or (y) if not consistent with the terms of the Notes, not be materially more restrictive to the Issuers (as determined by the Parent Issuer in good faith), when taken as a whole, than the terms of the Notes (except for covenants or other provisions applicable only to periods after the Maturity Date) and (vii) such Indebtedness shall be incurred, and the proceeds thereof used, solely to redeem, repurchase, retire or refinance Notes (substantially concurrently with the incurrence of such Indebtedness).

 

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Officer’s Certificate” means, with respect to any Person, a certificate signed by a Responsible Officer of such Person, meeting the applicable requirements set forth in this Indenture. Unless the context otherwise requires, each reference herein to an “Officer’s Certificate” means an Officer’s Certificate of the Parent Issuer. References herein, or in any other Notes Document, to any officer of a Person that is a partnership or limited liability company means such officer of the partnership or limited liability company or, if none, of a general partner or managing member of the partnership or limited liability company authorized thereby to act on its behalf.

 

Opinion of Counsel” means an opinion from legal counsel (and addressed to the Trustee and the Collateral Agent, as relevant) that meets the applicable requirements of this Indenture. The counsel may be an employee of or counsel to the Parent Issuer or any subsidiary of the Parent Issuer.

 

OID” means original issue discount.

 

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

Other Ares Entity” means (a) each affiliated investment entity and/or other affiliate of Ares and (b) each fund, investor, entity or account that is managed, sponsored or advised by Ares or its affiliates.

 

Other Ares Purchaser” means each Other Ares Entity that executes a counterpart to the Note Purchase Agreement pursuant to Section 9.4(c) thereof (or otherwise becomes a Beneficial Owner of Notes) or to which any Notes (or beneficial interests therein) or commitments to purchase Notes (or beneficial interests therein) are transferred or assigned.

 

Other GS Entity” means (a) each affiliated investment entity and/or other affiliate of Goldman Sachs & Co. LLC and (b) each fund, investor, entity or account that is managed, sponsored or advised by Goldman Sachs & Co. LLC or its affiliates.

 

Other GS Purchaser” means each Other GS Entity that executes a counterpart to the Note Purchase Agreement pursuant to Section 9.4(b) thereof (or otherwise becomes a Beneficial Owner of Notes) or to which any Notes (or beneficial interests therein) or commitments to purchase Notes (or beneficial interests therein) are transferred or assigned.

 

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Parity Lien Intercreditor Agreement” means, either an (a) intercreditor agreement substantially in the form of Exhibit I hereto or (b) a customary intercreditor agreement in form and substance reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and the Issuers, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Secured Obligations (but without regard to the control of remedies), in each case with such modifications thereto as the Controlling Parties or the Collateral Agent, as applicable, and the Issuers may agree. It is understood and agreed that to the extent this Indenture requires any Indebtedness to be subject to a Parity Lien Intercreditor Agreement at any time such agreement is not yet in effect, then the Note Parties, the Collateral Agent and the Senior Representative for such Indebtedness shall execute and deliver a Parity Lien Intercreditor Agreement.

 

Parity Lien Notes Refinancing Debt” means Notes Refinancing Debt that in respect of the Term Loan Priority Collateral is secured on a pari passu basis with the Secured Obligations.

 

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).

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA and is sponsored or maintained by any Note Party or any ERISA Affiliate or to which any Note Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

Permitted Acquisition” means any Investment of the type described in clause (3) of the definition of “Permitted Investments” or any acquisition of assets constituting a business unit, book of business, line of business or division of, or all or substantially all of the assets of another Person or any Equity Interests in a Person that becomes a Restricted Subsidiary, in each case, to the extent constituting a Permitted Investment or permitted under Section 4.06.

 

Permitted Holder” means any of (i) the Sponsor, (ii) Walgreens Co., (iii) any Management Stockholder, (iv) any Permitted Transferee of any of the foregoing Persons and (v) any “group” (within the meaning of Section 13(d) or Section 14(d) of the Exchange Act as in effect on the Closing Date) of which any of the foregoing are members; provided that in the case of such “group” and without giving effect to the existence of such “group” or any other “group,” such Persons specified in clauses (i), (ii), (iii) or (iv) above, collectively, have beneficial ownership, directly or indirectly, of more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Parent Issuer held by such “group”.

 

Permitted Investments” means:

 

(1)          any Investment by the Parent Issuer or any of its Restricted Subsidiaries in the Parent Issuer or any of its Restricted Subsidiaries; provided that any Investment by the Note Parties in Non-Note Parties pursuant to this clause (1) shall be (x) made in the ordinary course of business or (y) otherwise, shall not exceed an aggregate amount equal to the greater of (x) $91,875,000 and (y) 43.75% of Trailing Four Quarter Consolidated EBITDA (with the amount of each Investment and Consolidated EBITDA being measured at the time such Investment is made and without giving effect to subsequent changes in value, but subject to adjustment as set forth in the definition of “Investment”);

 

(2)          any Investment in assets that were cash, Cash Equivalents or Investment Grade Securities when such Investment was made;

 

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(3)          any Investment by the Parent Issuer or any of its Restricted Subsidiaries in a Person (including, to the extent constituting an Investment in assets of a Person that represents substantially all of its assets or a division, business unit, book of business, line of business or product line of such Person) that is engaged (directly or through entities that will be Restricted Subsidiaries) in a business permitted pursuant to Section 4.07, in each case, if as a result of such Investment:

 

(i)          such Person becomes a Restricted Subsidiary; or

 

(ii)         such Person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with (to the extent such Person is a Restricted Subsidiary), merged or consolidated into, or transfers or conveys substantially all of its assets (or such division, line of business, book of business, business unit or product line) to, or is liquidated into, the Parent Issuer or any of its Restricted Subsidiaries;

 

and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such amalgamation, merger, consolidation, transfer, conveyance or liquidation; provided that the aggregate amount of Investments by Note Parties pursuant to this clause (3) in assets (other than Equity Interests) that are not (or do not become at the time of such acquisition) directly owned by a Note Party or in Equity Interests of Persons that do not become Note Parties, shall not exceed the greater of $43,750,000 and 18.75% of Trailing Four Quarter Consolidated EBITDA; provided further if any acquisition of Equity Interests made pursuant to this clause (3) is in connection with a Permitted Acquisition of a Person (or Persons) pursuant to which greater than 60% of the Consolidated EBITDA attributable to such Person (or Persons) is directly generated by such Person (or Persons) that become Guarantors, then the provisions set forth in this proviso shall not apply; provided further that if any Investment made pursuant to this proviso is in Equity Interests of a Person that subsequently becomes a Note Party, such Investment shall thereafter be deemed permitted under clause (1) (without giving effect to the proviso thereto) and shall not be included as having been made pursuant to this clause (3);

 

(4)          any Investment in securities or other assets not constituting Cash Equivalents and received in connection with a Disposition made pursuant to Section 4.05 hereof;

 

(5)           any Investment (a) made in connection with the Transactions; or (b) existing on the Closing Date or made pursuant to binding commitments in effect on the Closing Date, in each case under this clause (b) as listed under Schedule 1.01E, or an Investment consisting of any extension, modification, replacement, renewal or reinvestment of any such Investment or binding commitment existing on the Closing Date; provided that the amount of any such Investment or binding commitment may only be increased (i) as required by the terms of such Investment or binding commitment as in existence on the Closing Date (including as a result of the accrual or accretion of interest or OID or the issuance of pay-in- kind securities) or (ii) as otherwise permitted under this Indenture;

 

(6)           any Investment acquired by the Parent Issuer or any of its Restricted Subsidiaries:

 

(i)          in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by any the Parent Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of, or settlement of delinquent accounts and disputes with or judgments against, the issuer of such other Investment or accounts receivable (including any trade creditor or customer); or

 

(ii)         in satisfaction of judgments against other Persons; or

 

(iii)        as a result of a foreclosure by the Parent Issuer or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or

 

(iv)        as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;

 

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(7)          Investments in Swap Contracts permitted under Section 4.03(f), Cash Management Services permitted under Section 4.03(l) and ABL Banking Services Obligations (as defined in the ABL Intercreditor Agreement);

 

(8)          distributions or payments of Securitization Fees;

 

(9)          Investments the payment for which consists of Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer; provided that such Equity Interests will not increase the amount available for Restricted Payments under Section 4.06(a)(iii) and may not be designated an Excluded Contribution;

 

(10)        guarantees of Indebtedness which guarantees are permitted under Section 4.03, performance guarantees, guarantees of obligations other than Indebtedness and Contingent Obligations incurred in the ordinary course of business and the creation of Liens on the assets of the Parent Issuer or any of its Restricted Subsidiaries in compliance with Section 4.01;

 

(11)        any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 4.08 (except transactions described in clauses (a), (b), (f), (g), (j), (n), (q), (s), (w), (y) and (z) of such Section);

 

(12)        Investments consisting of purchases or other acquisitions of inventory, supplies, services, material or equipment or the licensing or contribution of intellectual property pursuant to customary joint marketing arrangements with other Persons;

 

(13)        Investments taken together with all other Investments made pursuant to this clause (13) (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for, cash, Cash Equivalents or marketable securities) not to exceed the sum of (I) the greater of (x) $106,250,000 and (y) 50.0% of Trailing Four Quarter Consolidated EBITDA and (II) unused amounts under clause (26) below and Section 4.06(b)(xxiii) (with the amount of each Investment and Trailing Four Quarter Consolidated EBITDA being measured at the time such Investment is made and without giving effect to subsequent changes in value but subject to adjustment as set forth in the definition of “Investment”);

 

(14)        Investments in, or by, a Securitization Subsidiary that, in the good faith determination of the Issuers are necessary or advisable to effect any Qualified Securitization Financing or any purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;

 

(15)        loans and advances to, or guarantees of Indebtedness of, any future, present or former officers, directors, employees, independent contractors, consultants, advisors, service providers and members of management (or their Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer or any of its Restricted Subsidiaries in an aggregate amount not to exceed the greater of $20,000,000 and 9.375% of Trailing Four Quarter Consolidated EBITDA (with the amount of each Investment being measured at the time such Investment is made and without giving effect to subsequent changes in value, but subject to adjustment as set forth in the definition of “Investment”);

 

(16)        loans and advances to or notes received from (i) employees, directors, officers, independent contractors, members of management, managers, advisors, service providers and consultants of the Parent Issuer or any of its Restricted Subsidiaries for business-related travel expenses, entertainment expenses, moving expenses and other similar expenses or payroll advances, in each case incurred in the ordinary course of business or consistent with past practices or (ii) future, present and former employees, directors, officers, independent contractors, members of management, managers, advisors, service providers and consultants of the Parent Issuer or any of its Restricted Subsidiaries and, in each of the cases in clause (ii), their Controlled Investment Affiliates and Immediate Family Members, to fund such Person’s purchase of Equity Interests of the Parent Issuer; provided that, to the extent such loans or advances are made in cash, the amount of such loans and advances used to acquire such Equity Interest shall be contributed to such Issuer in cash as common equity;

 

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(17)        advances, loans or extensions of trade credit in the ordinary course of business by the Parent Issuer or any of its Restricted Subsidiaries;

 

(18)        any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;

 

(19)        Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;

 

(20)        Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client contacts;

 

(21)        Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;

 

(22)        Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with industry practices;

 

(23)        any Investment by any Captive Insurance Subsidiary in connection with its provision of insurance to the Parent Issuer or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its respective business, as applicable;

 

(24)        Investments consisting of promissory notes and other deferred payment obligations and noncash consideration delivered as the purchase consideration for a Disposition permitted by Section 4.05;

 

(25)        loans and advances to any direct or indirect shareholder of the Parent Issuer in lieu of and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof) Restricted Payments to the extent permitted to be made in cash to such shareholder in accordance with Section 4.06, such Investment being treated for purposes of the applicable clause of Section 4.06 at the time such loan or advance is made, including any limitations, as if a Restricted Payment made pursuant to such clause;

 

(26)        any investment in a joint venture or other business permitted pursuant to Section 4.07 taken together with all other Investments made pursuant to this clause (26) (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for, cash, Cash Equivalents or marketable securities) that are at that time outstanding, not to exceed the greater of (x) $91,875,000 and (y) 43.75% of Trailing Four Quarter Consolidated EBITDA (with the amount of each Investment being measured at the time made and without giving effect to subsequent changes in value, but subject to adjustment as set forth in the definition of “Investment”); provided that if any Investment made pursuant to this proviso is in Equity Interests of a Person that subsequently becomes a Note Party, such Investment shall thereafter be deemed permitted under clause (1) (without giving effect to the proviso thereto) and shall not be included as having been made pursuant to this clause (26);

 

(27)        Investments in deposit accounts, securities accounts and commodities accounts maintained by any Issuer or any Restricted Subsidiary, so long as such accounts are used only to maintain cash and Cash Equivalents;

 

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(28)        Investments constituting promissory notes issued by any employee or independent contractors of the Parent Issuer or any of its Restricted Subsidiaries in connection with any Permitted Acquisition permitted under this Indenture of a Person that becomes a Restricted Subsidiary as a result thereof (the “Target”) by the Parent Issuer or any of its Restricted Subsidiaries in which such employee or independent contractor purchases Equity Interests of the Target, which purchase is financed with funds loaned or advanced by the Parent Issuer or any of its Restricted Subsidiaries to such employee in connection with such Permitted Acquisition; provided that no Event of Default under Sections 6.01(a) or 6.01(f) (with respect to the Parent Issuer) has occurred and is continuing or would result therefrom;

 

(29)        loans and advances to employees or independent contractors of the Parent Issuer or any of its Restricted Subsidiaries so long as such loan or advance (x) constitutes an advance of one-time payment for the purpose of recruitment or retention or (y) is made for the purposes of funding of capital expenditures in the ordinary course of business;

 

(30)        Investments consisting of cash earnest money deposits in connection with a Permitted Acquisition or other Investment permitted hereunder;

 

(31)        (a) Notes repurchased by the Parent Issuer or a Restricted Subsidiary pursuant to and in accordance with the terms of this Indenture so long as such Notes are immediately cancelled and (b) Loans (as defined in the First Lien Credit Agreement (as in effect on the Closing Date)) purchased by the Parent Issuer or a Restricted Subsidiary pursuant to and in accordance with the terms of the First Lien Credit Agreement (as in effect on the Closing Date) so long as such Loans are immediately cancelled;

 

(32)        Investments so long as the Total Net Leverage Ratio (determined on a Pro Forma Basis) is no greater than 5.00 to 1.00;

 

(33)        Investments made in connection with a Permitted Reorganization; and

 

(34)        Investments in any Person to which any Issuer or any Restricted Subsidiary outsources operational activities or otherwise related to the outsourcing of operational activities in the ordinary course of business in an aggregate amount not to exceed $3,125,000.

 

Permitted Ratio Debt” means Indebtedness (including Acquired Indebtedness) incurred or assumed, or shares of Disqualified Equity Interests issued, by the Parent Issuer or any of its Restricted Subsidiaries or shares of Preferred Stock issued by any Restricted Subsidiary if and to the extent that (i) in the case of Indebtedness secured by Liens on the Collateral, the Senior Secured Net Leverage Ratio would have been no greater than 5.75 to 1.00, or (ii) in the case of Indebtedness that is unsecured, the Fixed Charge Coverage Ratio would have been no less than 2.00 to 1.00, in each case, determined on a Pro Forma Basis with respect to the most recently ended Test Period preceding the date on which such Indebtedness is incurred or assumed or such Disqualified Equity Interests or Preferred Stock is issued (or, in the case of Indebtedness under Designated Revolving Commitments, on the date such Designated Revolving Commitments are established after giving Pro Forma Effect to the incurrence of the entire committed amount of Indebtedness thereunder, in which case such committed amount under such Designated Revolving Commitments may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with Section 4.03); provided that Non-Note Parties may not incur, assume, issue or guarantee Indebtedness or issue Disqualified Equity Interests or Preferred Stock the primary obligations under which is outstanding in reliance on this definition or Section 4.03(w) (to the extent initially incurred, issued or assumed under Section 4.03(s)) if, after giving Pro Forma Effect to such incurrence, issuance, guarantee or assumption, the aggregate principal amount of Indebtedness, Disqualified Equity Interests and Preferred Stock of Non-Note Parties the primary obligations under which are outstanding in reliance on Section 4.03(s) or Section 4.03(w) (to the extent initially incurred, issued or assumed under Section 4.03(s)) together with the aggregate principal amount of Indebtedness, Disqualified Equity Interests and Preferred Stock of Non-Note Parties the primary obligations under which are outstanding in reliance on Section 4.03(g) or Section 4.03(w) (to the extent initially incurred, issued or assumed under Section 4.03(g)), would exceed the greater of (x) $43,750,000 and (y) 18.75% of Trailing Four Quarter Consolidated EBITDA, in each case determined at such time of incurrence, issuance, guarantee or assumption, plus, in the event of any extension, replacement, refinancing, renewal or defeasance of such Indebtedness, Disqualified Equity Interests or Preferred Stock pursuant to Section 4.03(s) or 4.03(w), the amount of any Refinancing Indebtedness incurred pursuant to Section 4.03(s) or 4.03(w) to finance (x) tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Equity Interests or Preferred Stock and any defeasance costs and (y) any fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Disqualified Equity Interests or Preferred Stock; provided that any Indebtedness incurred by any Note Party pursuant to this definition (other than any Permitted Ratio Debt consisting of a customary bridge facility so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies this criteria), as of the relevant closing date, shall not have a final scheduled maturity date earlier than the Maturity Date and shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereto); provided further that no Second Lien Indebtedness may be incurred in reliance on this definition unless the All-In Yield applicable to such Second Lien Indebtedness is not greater than the applicable All-In Yield with respect to the Notes (as amended through the date of such calculation) plus 50 basis points per annum unless the Applicable Margin (together with, as provided in the proviso below, the Adjusted LIBOR Rate Floor) with respect to the Notes is increased so as to cause the then applicable All-In Yield with respect to the Notes to equal the All-In Yield then applicable to such Second Lien Indebtedness minus 50 basis points; provided that any increase in All-In Yield to the Notes due to the application or imposition of a “eurocurrency floor” or “base rate floor” or similar floor on such Second Lien Indebtedness shall be effected, at the Parent Issuer’s option, (i) solely through an increase in the Adjusted LIBOR Rate Floor applicable the Notes, (ii) through an increase in the Applicable Margin or (iii) any combination of (i) and (ii) above; provided further that the Parent Issuer and the Trustee shall be permitted to amend this Indenture and the Notes without the consent of the Holders to give effect to any increase in the Applicable Margin or Adjusted LIBOR Rate Floor pursuant to the immediately preceding proviso.

 

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Permitted Reorganization” means any re-organization or other similar activities among the Parent Issuer and its Restricted Subsidiaries related to Tax planning and re-organization, so long as, after giving effect thereto, (a) the Note Parties are in compliance with the Collateral and Guarantee Requirement and Sections 3.13 and 3.15, (b) taken as a whole, the value of the Collateral securing the Secured Obligations and the Guarantees by the Guarantors of the Secured Obligations are not materially reduced, (c) the Liens in favor of the Collateral Agent for the benefit of the Secured Parties under the Collateral Documents are not materially impaired and (d) no Unrestricted Subsidiaries are formed except as otherwise permitted under this Indenture (other than pursuant to this term).

 

Permitted Transferees” means (a) in the case of the Sponsor, (i) any Affiliate of the Sponsor (but excluding any portfolio company of any of the foregoing), (ii) any managing director, general partner, limited partner, director, officer or employee of the Sponsor or any of its Affiliates (collectively, the “Sponsor Associates”), (iii) the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any Sponsor Associate and (iv) any trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a Sponsor Associate, his or her spouse (or former spouse), parents, siblings, members of his or her immediate family (including adopted children and step children) and/or direct lineal descendants; (b) in the case of Walgreens Co., any of its subsidiaries; and (c) in the case of any Management Stockholder, (i) his or her executor, administrator, testamentary trustee, legatee or beneficiaries, (ii) his or her spouse (or former spouse), parents, siblings, members of his or her immediate family (including adopted children and step children) and/or direct lineal descendants or (iii) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a Management Stockholder and his or her spouse (or former spouse), parents, siblings, members of his or her immediate family (including adopted children) and/or direct lineal descendants.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.

 

Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up to shares of Equity Interests of any other class of such Person.

 

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Previously Absent Financial Maintenance Covenant” means, at any time (x) any financial maintenance covenant that is not included in this Indenture at such time and (y) any financial maintenance covenant that is included in this Indenture at such time but with covenant levels and component definitions (to the extent relating to such financial maintenance covenant) in this Indenture that are less restrictive on the Parent Issuer and its Restricted Subsidiaries than those in the applicable documents relating to Additional Junior Debt, Additional Second Lien Debt or any Notes Refinancing Debt.

 

Proceeds” has the meaning set forth for such term in the Security Agreement.

 

Pro Forma Balance Sheet” means a pro forma consolidated balance sheet of the Company as of March 31, 2019, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date.

 

Pro Forma Basis” and “Pro Forma Effect” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.08.

 

Purchaser” means (a) each GS Purchaser and (b) each Ares Purchaser.

 

Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

Qualified Primary Equity Offering” means the issuance by the Parent Issuer of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

 

Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (a) such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Parent Issuer and the Securitization Subsidiary and (b) all sales and/or contributions of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value. The grant of a security interest in any Securitization Assets of the Parent Issuer or any of the Restricted Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under this Indenture prior to engaging in any Securitization Financing shall not be deemed a Qualified Securitization Financing.

 

Qualified Institutional Buyer” or “QIB” means any Person that is a “qualified institutional buyer” as such term is defined in Rule 144A.

 

Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

 

Record Date” means any of the Record Dates indicated on the face of a Note.

 

Refinancing Indebtedness” means (x) Indebtedness incurred by the Parent Issuer or any of its Restricted Subsidiaries, (y) Disqualified Equity Interests issued by the Parent Issuer or any of its Restricted Subsidiaries or (z) Preferred Stock issued by any Restricted Subsidiary, which, in each case, serves to extend, replace, refund, refinance, renew or defease any Indebtedness, Disqualified Equity Interests or Preferred Stock, so long as:

 

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(a)          the principal amount (or accreted value, if applicable) of such new Indebtedness, the amount of such new Preferred Stock or the liquidation preference of such new Disqualified Equity Interests does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Indebtedness, the amount of, plus any accrued and unpaid dividends on, the Preferred Stock, or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Equity Interests, being so extended, replaced, refunded, refinanced, renewed or defeased (such Indebtedness or Disqualified Equity Interests or Preferred Stock, the “Applicable Refinanced Debt”), plus an amount equal to any existing commitments unutilized under such Applicable Refinanced Debt to the extent permanently terminated at the time of incurrence of such Refinancing Indebtedness plus the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Applicable Refinanced Debt and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Preferred Stock or Disqualified Equity Interests or the extension, replacement, refunding, refinancing, renewal or defeasance of such Applicable Refinanced Debt;

 

(b)          such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Equity Interests or Preferred Stock being extended, replaced, refunded, refinanced, renewed or defeased;

 

(c)          such Refinancing Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Indebtedness, Preferred Stock or Disqualified Equity Interests being so extended, replaced, refunded, refinanced, renewed or defeased (or, if earlier, the date that is 91 days after the Maturity Date);

 

(d)          to the extent such Refinancing Indebtedness extends, replaces, refunds, refinances, renews or defeases (i) Subordinated Indebtedness (other than Subordinated Indebtedness assumed or acquired in a Permitted Acquisition or any other acquisition and, in each case, not created in contemplation thereof) such Refinancing Indebtedness is subordinated to the Secured Obligations at least to the same extent as the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased or (ii) Disqualified Equity Interests or Preferred Stock, such Refinancing Indebtedness must be Disqualified Equity Interests or Preferred Stock, respectively;

 

(e)          if the Applicable Refinanced Debt was unsecured, any Refinancing Indebtedness in respect thereof shall be unsecured;

 

(f)           other than any Person that is required to be an obligor or guarantor on the Applicable Refinanced Debt permitted under Section 4.03, no Person shall be an obligor or guarantor on any Refinancing Indebtedness in respect thereof unless such Person is an Issuer or a Guarantor of the Secured Obligations; and

 

provided further, that clauses (b) and (c) of this definition will not apply to any extension, replacement, refunding, refinancing, renewal or defeasance of any Indebtedness other than Indebtedness incurred under Sections 4.03(m)(ii), (p), (s), (t), (w) (to the extent originally Refinancing Indebtedness in respect of the foregoing) or (z), any Subordinated Indebtedness (other than Subordinated Indebtedness assumed or acquired in a Permitted Acquisition or any other acquisition and, in each case, not created in contemplation thereof), Disqualified Equity Interests and Preferred Stock.

 

Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.

 

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

 

Regulation S Global Note” means a Global Note 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 or to be sold in reliance on Regulation S.

 

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Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the otherwise applicable notice period has been waived by regulation or otherwise by the PBGC.

 

Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, chief operating officer, chief administrative officer, secretary or assistant secretary, controller, treasurer or assistant treasurer or other similar officer or Person performing similar functions of a Note Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Note Party so designated by any of the foregoing officers in a notice to the Trustee or any other officer or employee of the applicable Note Party designated in or pursuant to an agreement between the applicable Note Party and the Trustee. Any document delivered hereunder that is signed by a Responsible Officer of a Note Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Note Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Note Party. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a Responsible Officer of the Parent Issuer.

 

Restricted Cash” means cash and Cash Equivalents which are listed as “Restricted” on the consolidated statement of financial condition of the Parent Issuer and the Restricted Subsidiaries; provided that (i) cash and Cash Equivalents restricted under the Notes Documents, the ABL Financing Documents, the First Lien Loan Documents or any other agreement, document or instrument evidencing Indebtedness that is secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Secured Obligations, the ABL Obligations or the First Lien Secured Obligations shall not be deemed to be “Restricted Cash” as a result of such restrictions and (ii) cash and Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed to the Parent Issuer (a “Shareholder Restriction”) shall not be deemed to be “Restricted Cash” as a result of such Shareholder Restriction.

 

Required Amount” means more than 50% of the aggregate principal amount of the then outstanding Notes.

 

Required Holders” means Holders holding the Required Amount.

 

Restricted Investment” means an Investment other than a Permitted Investment.

 

Restricted Subsidiary” means any Subsidiary of the Parent Issuer other than an Unrestricted Subsidiary; provided that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”

 

Returns” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a Disposition or otherwise) and other amounts received or realized by an Issuer or a Restricted Subsidiary in respect of such Investment.

 

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 Period” means the 40-day distribution compliance period as defined in Regulation S.

 

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

 

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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 Ratings Services, a subsidiary of S&P Global Inc., and any successor thereto.

 

Satisfaction and Discharge” means the satisfaction and discharge of this Indenture with respect to all of the Notes pursuant to Article XI.

 

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Second Lien Debt Documents” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

Second Lien Secured Obligations” has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

 

Second Lien Indebtedness” means Indebtedness in the form of loans or notes that constitutes Second Lien Secured Obligations.

 

Secured Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Note Party and its Restricted Subsidiaries arising under any Notes Document or otherwise with respect to any Note, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and other amounts that accrue after the commencement by or against any Note Party or Restricted Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and other amounts are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Secured Obligations of the Note Parties under the Notes Documents (and their Restricted Subsidiaries to the extent they have obligations under the Notes Documents) include the obligation (including guarantee obligations) to pay principal, interest, fees, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Note Party under any Notes Document (including any reimbursement obligations in respect of any of the foregoing that Trustee has paid or advanced on behalf of such Note Party pursuant to the terms of the Notes Documents).

 

Secured Parties” means, collectively, the Trustee, the Collateral Agent, the Holders, the Purchasers and each other holder of Secured Obligations.

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

Securitization Assets” means (a) the accounts receivable, royalty or other revenue streams and other rights to payment subject to a Qualified Securitization Financing and the proceeds thereof and (b) contract rights, lockbox accounts and records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in a securitization financing.

 

Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees and expenses (including reasonable fees and expenses of legal counsel) paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.

 

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Securitization Financing” means any transaction or series of transactions that may be entered into by the Parent Issuer or any of its Subsidiaries pursuant to which the Parent Issuer or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Parent Issuer or any of its Subsidiaries) or (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets of the Parent Issuer or any of its Subsidiaries, and any assets related thereto, including all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets.

 

Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase such assets arising as a result of a beach of a Standard Securitization Undertaking, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

 

Securitization Subsidiary” means a wholly-owned Subsidiary of the Parent Issuer (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Parent Issuer or any Subsidiary of the Parent Issuer makes an investment and to which the Parent Issuer or any Subsidiary of the Parent Issuer transfers Securitization Assets and related assets) that engages in no activities other than in connection with the financing of Securitization Assets of the Parent Issuer or its Subsidiaries, all proceeds thereof and all rights (contingent and other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Parent Issuer or such other Person (as provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Parent Issuer or any other Subsidiary of the Parent Issuer, other than another Securitization Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings or Limited Originator Recourse), (ii) is recourse to or obligates the Parent Issuer or any other Subsidiary of the Parent Issuer, other than another Securitization Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or Limited Originator Recourse or (iii) subjects any property or asset of any the Parent Issuer or any other Subsidiary of the Parent Issuer, other than another Securitization Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings or Limited Originator Recourse, (b) with which none of the Parent Issuer or any other Subsidiary of the Parent Issuer, other than another Securitization Subsidiary, has any material contract, agreement, arrangement or understanding other than on terms which the Parent Issuer reasonably believes to be no less favorable to the Parent Issuer or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Issuer and (c) to which none of the Parent Issuer or any other Subsidiary of the Parent Issuer, other than another Securitization Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Parent Issuer or such other Person shall be evidenced to the Trustee by delivery to the Trustee of a certified copy of the resolution of the Board of Directors of the Parent Issuer or such other Person giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

 

Security Agreement” means a security agreement substantially in the form of Exhibit E.

 

Security Agreement Supplement” has the meaning assigned to such term in the Security Agreement.

 

Sell-Down Date” means the first date after the Closing Date after which both the GS Disposition Date and the Ares Disposition Date have occurred.

 

Senior Representative” means, with respect to any series of secured or subordinated Indebtedness permitted to be incurred under this Indenture, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

 

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Senior Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Senior Secured Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Issuer for such Test Period.

 

Specified Junior Financing Obligations” means any obligations in respect of any Junior Financing in respect of which any Note Party is an obligor in a principal amount in excess of the Threshold Amount.

 

Specified Representations” has the meaning assigned to such term in the Note Purchase Agreement.

 

Specified Transaction” means (a) the Transactions, (b) any designation of operations or assets of the Parent Issuer or any of its Restricted Subsidiaries as discontinued operations (as defined under GAAP), (c) any Investment that results in a Person becoming a Restricted Subsidiary, (d) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, (e) any Permitted Acquisition, (f) any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Parent Issuer or any Disposition of a business unit, line of business, book of business or division of the Parent Issuer or any of its Restricted Subsidiaries, in each case whether by merger, consolidation, amalgamation or otherwise or (g) any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes), a Restricted Payment, Additional First Lien Debt, Additional Junior Debt or Additional Second Lien Debt, in each case, that by the terms of this Indenture requires a financial ratio or test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”

 

Sponsor” means Madison Dearborn Partners, LLC and any of its Affiliates and funds or partnerships managed or advised by any of them or any of their respective Affiliates, but not including, however, any portfolio company of any of the foregoing.

 

Sponsor Management Agreement” means a management services agreement or similar agreement among the Sponsor or certain of the management companies associated with the Sponsor or its advisors, if applicable, and one or more Note Parties.

 

Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by an Issuer or any Subsidiary of an Issuer that are customary in a Securitization Financing.

 

Subordinated Indebtedness” means, with respect to the Secured Obligations,

 

(a)          any Indebtedness of any Issuer which is by its terms junior in right of payment to the Secured Obligations, and

 

(b)          any Indebtedness of any Guarantor which is by its terms junior in right of payment to the Guarantee of such entity of the Secured Obligations.

 

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (excluding, for the avoidance of doubt, any charitable organizations and any other Person that meets the requirements of Section 501(c)(3) of the Code) of which (i) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned or (ii) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Issuer.

 

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap 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.

 

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Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.

 

Taxes” means all present or future taxes, duties, levies, imposts, assessments or withholdings imposed by any Governmental Authority including interest, penalties and additions to tax.

 

Term B Loans” has the meaning assigned to such term in the First Lien Credit Agreement (as in effect on the date hereof).

 

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

 

Termination Date” means the date after the Closing Date on which Satisfaction and Discharge, Legal Defeasance or Covenant Defeasance occurs.

 

Test Period” means, for any date of determination under this Indenture, the four consecutive fiscal quarters of the Parent Issuer most recently ended as of such date of determination for which financial statements are available.

 

Threshold Amount” means $62,500,000.

 

TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).

 

Total Assets” means the total assets of the Parent Issuer and the Restricted Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Parent Issuer delivered pursuant to Section 3.01(a) or (b) (and, in the case of any determination relating to any incurrence of Indebtedness or any Investment, Restricted Payment or Permitted Acquisition or other acquisition, on a Pro Forma Basis including any property or assets being acquired or disposed of in connection therewith) or, for the period prior to the time any such statements are so delivered pursuant to Section 3.01(a) or (b), the Pro Forma Balance Sheet.

 

Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Issuer for such Test Period.

 

Trailing Four Quarter Consolidated EBITDA” means Consolidated EBITDA for the most recently ended Test Period (determined on a Pro Forma Basis in accordance with Section 1.08).

 

Transaction Expenses” means any fees, premiums, expenses or other costs incurred or paid by the Sponsor, the Parent Issuer or any of its (or their) Subsidiaries in connection with the Transactions (including fees and expenses in connection with hedging transactions and this Indenture, the other Notes Documents, the ABL Financing Documents, the First Lien Loan Documents and the transactions contemplated hereby and thereby).

 

Transactions” means, collectively, (a) the Merger and other related transactions contemplated by the Merger Agreement, (b) the Debt Assumption, (c) the funding of the Term B Loans, the ABL Revolving Loans and the Notes on the Closing Date and the execution and delivery of Notes Documents, the ABL Financing Documents and the First Lien Loan Documents to be entered into on the Closing Date, (d) the payment of Transaction Expenses and (e) the Closing Date Refinancing.

 

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Trust Officer” means, when used with respect to the Trustee or Collateral Agent, as applicable, any vice president, assistant vice president, any trust officer or any other officer of the Trustee or Collateral Agent, as applicable, who shall have direct responsibility for the administration of this Indenture, and also means any other officer of the Trustee or Collateral Agent, as applicable, to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject.

 

Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.

 

U.S. Government Obligations” means direct non-callable obligations of the United States for the timely payment of which the full faith and credit of the United States is pledged.

 

U.S. Person” means any Person that is incorporated or organized under the laws of the United States, any state thereof or the District of Columbia

 

Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or similar code or statute) as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to perfect a security interest in or otherwise apply to any item or items of Collateral.

 

United States” and “U.S.” mean the United States of America.

 

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” means any Subsidiary of the Parent Issuer designated by the Board of Directors of the Parent Issuer as an Unrestricted Subsidiary pursuant to Section 3.16 subsequent to the Closing Date.

 

USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

 

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final scheduled maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness; provided that AHYDO Payments and the effects of any prepayments or amortization made on such Indebtedness shall be disregarded in making such calculation.

 

wholly-owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly-owned Subsidiaries of such Person.

 

Yen” means the lawful currency of Japan.

 

Section 1.02         Interpretive Provisions. With reference to this Indenture and each other Notes Document, unless otherwise specified herein or in such other Notes Document:

 

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(a)          The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)          The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Notes Document shall refer to such Notes Document as a whole and not to any particular provision thereof.

 

(c)          References in this Indenture to an Exhibit, Schedule, Article, Section, clause or subclause refer (A) to the appropriate Exhibit or Schedule to, or Article, Section, clause or subclause in this Indenture or (B) to the extent such references are not present in this Indenture, to the Notes Document in which such reference appears.

 

(d)          The term “including” is by way of example and not limitation.

 

(e)          The word “or” is not exclusive.

 

(f)           The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(g)          In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”

 

(h)          Section headings herein and in the other Notes Documents are included for convenience of reference only and shall not affect the interpretation of this Indenture or any other Notes Document.

 

(i)            For purposes of determining compliance with any Section of Article IV at any time, in the event that any Lien, Investment, Indebtedness (at the time of incurrence or upon application of all or a portion of the proceeds thereof as permitted under the Notes Documents), Disposition, Restricted Payment, Affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions permitted pursuant to any clause of such Sections, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Parent Issuer in its sole discretion at such time (or any later time from time to time, in each case, as determined by the Parent Issuer in its sole discretion at such time) and thereafter may be reclassified by the Parent Issuer in any manner not prohibited by this Indenture.

 

(j)           The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

(k)          All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.

 

(l)           The words “principal amount” shall include the liquidation preference of any Disqualified Equity Interests and Preferred Stock.

 

(m)          For avoidance of doubt, except where the context shall otherwise require, any reference to any employee, director, officer, member of management, independent contractor, advisor, service provider or consultant shall refer to any future, current or former employee, director, officer, member of management, independent contractor, advisor, service provider or consultant.

 

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(n)          All references to “in the ordinary course of business” of any Issuer or any Subsidiary thereof means (i) in the ordinary course of business of, or in furtherance of an objective that is in the ordinary course of business of such Issuer or such Subsidiary, as applicable, (ii) customary and usual in the industry or industries of the Issuers and their Subsidiaries in the United States or any other jurisdiction in which the Issuers or any Subsidiary does business, as applicable, or (iii) generally consistent with the past or current practice of the Issuers or such Subsidiary, as applicable, or any similarly situated businesses in the United States or any other jurisdiction in which the Issuers or any Subsidiary does business, as applicable.

 

(o)          All references to “knowledge” of any Note Party or any Restricted Subsidiary means the actual knowledge of a Responsible Officer.

 

(p)          All certifications to be made hereunder by an officer or representative of a Note Party shall be made by such person in his or her capacity solely as an officer or a representative of such Note Party, on such Note Party’s behalf and not in such Person’s individual capacity.

 

(q)          Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity), and to the extent any covenant in any Notes Document is applicable to such limited liability company immediately prior to such division, such covenant shall apply to any Person resulting from such division immediately after such division. For the avoidance of doubt, for purposes of Section 3.13, any Person resulting from such division of a Restricted Subsidiary constitutes a new Restricted Subsidiary that is created or acquired after the Closing Date.

 

(r)           References in this Indenture to any direct or indirect parent of the Parent Issuer shall include Omega Parent.

 

(s)          Except as expressly set forth herein or in the other Notes Documents, with respect to any provision in this Indenture or the other Notes Documents that requires (i) any document or item to be satisfactory or acceptable to “the Controlling Parties” or (ii) any matter to be subject to the agreement, consent or approval of (or consultation with or the instruction or direction from) “the Controlling Parties”, (A) if neither the GS Disposition Date nor the Ares Disposition Date has occurred, such requirement shall be satisfied if and only if such document or item is satisfactory or acceptable to, or such agreement, approval or consent has been received from (or such consultation has been made with or such instruction or direction has been received from), both the GS Purchasers and the Ares Purchasers, (B) if the Ares Disposition Date has occurred but the GS Disposition Date has not occurred, such requirement shall be satisfied if and only if such document or item is satisfactory or acceptable to, or such agreement, approval or consent has been received from (or such consultation has been made with or such instruction or direction has been received from), the GS Purchasers, (C) if the GS Disposition Date has occurred but the Ares Disposition Date has not occurred, such requirement shall be satisfied if and only if such document or item is satisfactory or acceptable to, or such agreement, approval or consent has been received from (or such consultation has been made with or such instruction or direction has been received from), the Ares Purchasers and (D) if the Sell-Down Date has occurred, such requirement shall be satisfied if and only if such document, item or matter is satisfactory or acceptable to, or such agreement, approval or consent has been received from (or such consultation has been made with or such instruction or direction has been received from), the Required Holders.

 

(t)           Notwithstanding clause (s) of this Section 1.02, except as expressly set forth herein or in the other Notes Documents, with respect to any provision in this Indenture or the other Notes Documents permitting any action to be taken, or request or instruction to be made, by “any Controlling Party” or “any of the Controlling Parties”, (i) if neither the GS Disposition Date nor the Ares Disposition Date has occurred, such action may be taken, or such request or instruction may be made, by any or all of the Purchasers, (ii) if the Ares Disposition Date has occurred but the GS Disposition Date has not occurred, such action may be taken, or such request or instruction may be made, by any or all of the GS Purchasers, (iii) if the GS Disposition Date has occurred but the Ares Disposition Date has not occurred, such action may be taken, or such request or instruction may be made, by any or all of the Ares Purchasers and (iv) if the Sell-Down Date has occurred, such action may be taken, or such request or instruction may be made, by the Required Holders.

 

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(u)          Except as expressly set forth herein, (i) with respect to any provision in this Indenture that requires (A) any document or item to be satisfactory or acceptable to the Designated First Lien Representative or (B) any matter to be subject to the agreement, consent or approval of the Designated First Lien Representative, such requirement shall be satisfied if and only if the corresponding document or item under the applicable First Lien Loan Documents is satisfactory or acceptable to, or the corresponding agreement, approval or consent under the applicable First Lien Loan Documents has been received from, the Designated First Lien Representative for purposes of the applicable First Lien Loan Documents and (ii) with respect to any provision in this Indenture permitting any action to be taken, or request or instruction to be made, by the Designated First Lien Representative under this Indenture, such action, request or instruction shall be deemed to have been taken or made, as applicable, for purposes of this Indenture if and only if the Designated First Lien Representative has taken the corresponding action, or made the corresponding request or instruction, under the applicable First Lien Loan Documents; provided that notwithstanding the foregoing or anything to the contrary in this Indenture, nothing in this Indenture purports to grant any rights to, or impose any obligations on, the Designated First Lien Representative under this Indenture.

 

Section 1.03          Accounting Terms. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Indenture shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein. Notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof. Notwithstanding any other provision contained herein, (a) any obligation of any Person that would have been treated as an operating lease for purposes of GAAP as of December 14, 2018 (whether or not such obligation was in effect on such date) shall be accounted for as an operating lease for purposes of this Indenture, notwithstanding any actual or proposed change in GAAP (whether on a prospective or retroactive basis) after such date and shall not be treated as Indebtedness, Attributable Indebtedness or a Capitalized Lease and (b) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to Statement of Financial Accounting Standards 141R or ASC 805 (or any other financial accounting standard having a similar result or effect).

 

Section 1.04          Rounding. Any financial ratios required to be maintained by the Parent Issuer pursuant to this Indenture (or required to be satisfied in order for a specific action to be permitted under this Indenture) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

Section 1.05          References to Agreements, Laws, Etc.. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Notes Documents, the ABL Financing Documents and the First Lien Loan Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, refinancings, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, refinancings, extensions, supplements and other modifications are not prohibited by any Notes Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law. Any term or section reference herein or in the other Notes Documents which refers to a defined term or section reference in any Organization Document, agreement, Contractual Obligation or Law shall be deemed to be a cross-reference to the same or comparable defined term or section reference, as applicable, in any such amendment, Refinancing, restatement, renewal, restructuring, extension, supplement or other modification to such Organization Document, agreement, Contractual Obligation or any such consolidation, amendment, replacement, supplement or interpretation of such Law.

 

Section 1.06          Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York, New York time (daylight or standard, as applicable).

 

Section 1.07          Timing of Payment or Performance. Except as otherwise provided in this Indenture or any other applicable Notes Document, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

 

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Section 1.08         Pro Forma Calculations.

 

(a)          Notwithstanding anything to the contrary herein, financial ratios and tests, including the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Fixed Charge Coverage Ratio and compliance with covenants determined by reference to Consolidated EBITDA or Total Assets, shall be calculated in the manner prescribed by this Section 1.08; provided that notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.08, when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Cash Equivalents resulting from the incurrence of such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test for purposes of determining net Indebtedness. In addition, whenever a financial ratio or test 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 internal financial statements of the Parent Issuer are available (as determined in good faith by the Parent Issuer).

 

(b)          For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.08 (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit)) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent Issuer or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08, then such financial ratio or test (or Consolidated EBITDA or Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.

 

(c)          Whenever pro forma effect is to be given to the Transactions, a Specified Transaction or the implementation of an operational initiative or operational change, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent Issuer and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies projected by the Parent Issuer in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (in the good faith determination of the Parent Issuer) (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to the Transactions, such Specified Transaction or such implementation of an operational initiative or operational change; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Parent Issuer, (B) except as set forth in the definition of “Consolidated EBITDA”, such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken no later than twenty-four (24) months after the date of the Transactions, such Specified Transaction or implementation of such operational initiative or operational change, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period, (D) it is understood and agreed that, subject to compliance with the other provisions of this Section 1.08(c), amounts to be included in pro forma calculations pursuant to this Section 1.08(c) may be included in Test Periods in which the Specified Transaction to which such amounts relate to is no longer being given pro forma effect pursuant to Section 1.08(b) and (E) any increase in Consolidated EBITDA as a result of cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies pursuant to this Section 1.08(c) (other than related to the Transactions) shall be subject to the limitations set forth in clause (a)(vii) of the definition of Consolidated EBITDA.

 

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(d)          In the event that (w) the Parent Issuer or any of its Restricted Subsidiaries incurs (including by assumption or guarantees) or repays (including by redemption, repayment, amortization, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit), (x) the Parent Issuer or any of its Restricted Subsidiaries issues, repurchases or redeems Disqualified Equity Interests, (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock or (z) the Parent Issuer or any of its Restricted Subsidiaries establishes or eliminates (or designates or undesignates) any Designated Revolving Commitments, in each case included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, or such issuance or redemption of Disqualified Equity Interests or Preferred Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Fixed Charge Coverage Ratio (or similar ratio), in which case such incurrence, assumption, guarantee, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness or such issuance, repurchase or redemption of Disqualified Equity Interests or Preferred Stock will be given effect, as if the same had occurred on the first day of the applicable Test Period) and for all purposes, such financial ratio or test shall be calculated giving pro forma effect to the full amount of any undrawn Designated Revolving Commitments as if such full amount of Indebtedness thereunder had been incurred thereunder throughout such period.

 

(e)          If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Fixed Charge Coverage Ratio (or similar ratio) is made had been the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial Officer of the Parent Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency rate interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Parent Issuer or such Restricted Subsidiaries may designate.

 

(f)           (I) In connection with the calculation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio or the Fixed Charge Coverage Ratio for purposes of incurring Indebtedness (including Preferred Stock) or Disqualified Equity Interests under this Indenture, no effect (pro forma or otherwise) shall be given to any Indebtedness (or Preferred Stock) or Disqualified Equity Interests being incurred (or commitments obtained) on the same date (or on a such other subsequent date which otherwise require Pro Forma Effect to be given to such incurrence (or obtaining of commitments)) pursuant to any fixed dollar basket or basket based on Consolidated EBITDA; and (II) in connection with the calculation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio or the Fixed Charge Coverage Ratio for purposes of incurring any Lien under this Indenture, no effect (pro forma or otherwise) shall be given to any Liens being incurred on the same date (or on a such other subsequent date which otherwise require Pro Forma Effect to be given to such incurrence) pursuant to any fixed dollar basket or basket based on Consolidated EBITDA.

 

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(g)          Notwithstanding anything in this Indenture or any Notes Document to the contrary, when (a) determining compliance with any provision of this Indenture which requires the calculation of the Fixed Charge Coverage Ratio, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio, (b) determining compliance with any provision of this Indenture which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (c) determining compliance with any provision of this Indenture which requires compliance with any representations and warranties set forth herein or (d) testing availability under baskets set forth in this Indenture (including baskets measured as a percentage of Consolidated EBITDA), in each case in connection with a Limited Condition Transaction, the date of determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the availability under any baskets shall, at the option of the Parent Issuer (the Parent Issuer’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”, which LCT Election may be in respect of one or more of clauses (a), (b), (c) and (d) above), be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction are entered into (the “LCT Test Date”). If on a pro forma basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness, Disqualified Equity Interests or Preferred Stock and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which internal financial statements are available (as determined in good faith by the Parent Issuer), the Parent Issuer could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios, default provisions or other provisions, such ratios, default provisions or other provisions shall be deemed to have been complied with on such date. For the avoidance of doubt, (i) if, following the LCT Test Date, any of such ratios, default provisions or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA or other components of such ratio (including due to fluctuations of the Target of any Limited Condition Transaction, including its cash and Cash Equivalents or the amount of such Indebtedness)) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios, default provisions or other provisions will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Parent Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder on or following the relevant LCT Test Date and prior to the earliest of the date on which such Limited Condition Transaction is consummated and the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, basket or compliance with any other provision hereunder shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness, Disqualified Equity Interests or Preferred Stock, and the use of proceeds thereof) had been consummated on the LCT Test Date; provided that for purposes of any such calculation of the Fixed Charges Coverage Ratio, Fixed Charges will be calculated using an assumed interest rate for the Indebtedness to be incurred in connection with such Limited Condition Transaction based on the indicative interest margin contained in any financing commitment documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the Parent Issuer in good faith.

 

Section 1.09         Currency Generally. For purposes of determining compliance with Sections 4.01, 4.03, 4.05, 4.06 and 4.13 and the definition of “Permitted Investments” with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness or Investment is incurred (so long as such Indebtedness or Investment, at the time incurred, made or acquired, was permitted hereunder).

 

For purposes of determining the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Total Net Leverage Ratio or any other leverage-based ratio or test under this Indenture, the amount of Indebtedness shall reflect the currency translation effects, determined in accordance with GAAP, of Swap Contracts permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness

 

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Section 1.10         LIBOR Discontinuation. Notwithstanding anything to the contrary contained herein or in the other Notes Documents, if, with respect to any Interest Period, the rate of interest used to calculate the “Adjusted LIBOR Rate” for such Interest Period is not available on the Determination Date for such Interest Period for any reason (as determined by the Calculation Agent), then the rate of interest used to calculate the “Adjusted LIBOR Rate” for such Interest Period shall be (I) at any time prior to the Sell-Down Date, a comparable or successor floating rate reasonably acceptable to the Parent Issuer and the Controlling Parties and certified in an Officer’s Certificate delivered to the Trustee and the Calculation Agent and (II) at any time from and after the Sell-Down Date, a comparable or successor floating rate that is, at such time, broadly accepted by the syndicated loan market for loans denominated in Dollars as determined by the Parent Issuer (and certified in an Officer’s Certificate delivered to the Trustee and the Calculation Agent) or, if no such broadly accepted comparable successor rate exists at such time, a successor index rate as the Parent Issuer may determine with the consent of the Required Holders (such consent not to be unreasonably withheld, conditioned or delayed) and certified in an Officer’s Certificate delivered to the Trustee and the Calculation Agent; provided that (i) any such successor rate shall be applied by the Trustee in a manner consistent with market practice, (ii) to the extent such market practice is not administratively feasible for the Trustee, such successor rate shall be applied in a manner as otherwise reasonably determined by the Trustee, without recourse or liability, in consultation with the Parent Issuer, which shall be binding upon the Holders and certified in an Officer’s Certificate delivered to the Trustee and the Calculation Agent and (iii) in no event shall such successor floating rate be less than 0.00% per annum. In the event that the Trustee and Calculation Agent have not received an Officer’s Certificate of the Parent Issuer establishing a successor rate by the date which is five (5) Business Days prior to an Interest Payment Date, then the Adjusted LIBOR Rate in effect for the Interest Period to which such Interest Payment Date relates shall be the Adjusted LIBOR Rate that applied for the immediately preceding Interest Period.

 

Section 1.11          Other Definitions.

 

Term

Defined in

100% PIK Option   Exhibit A; Notes
50% PIK Option   Exhibit A; Notes
Adjusted LIBOR Rate   Exhibit A; Notes
Adjusted LIBOR Rate Floor   Exhibit A; Notes
Applicable Margin   Exhibit A; Notes
Applicable Rate   Exhibit A; Notes
Applicable Refinanced Debt   Definition of “Refinancing Indebtedness”
Asset Sale Declined Proceeds   3.24(g)
Asset Sale Offer   3.24(a)
Asset Sale Offer Amount   3.24(c)
Asset Sale Offer Purchase Date   3.24(a)
Asset Sale Offer Period   3.24(c)
Authenticating Agent   2.02
Calculation Agent   13.22
Change of Control Offer   3.23(a)
Change of Control Payment   3.23(a)
Change of Control Offer Purchase Date   3.23(a)
Closed Indenture Provision   2.02
Company   Preamble
Control   Definition of “Affiliate”
Covenant Defeasance   8.03
Debt Assumption   13.23(b)
Declined Proceeds   3.25(f)

 

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Term

Defined in

Defaulted Interest   2.11
Determination Date   Exhibit A; Notes
DTC   2.03
Elective Guarantor   Definition of “Guarantors”
Event of Default   6.01
Foreign Casualty Event   3.24(b)
Foreign Disposition   3.24(b)
Guaranteed Note Obligations   10.01
Indenture   Preamble
Interest Payment Date   Exhibit A; Notes
Interest Period   Exhibit A; Notes
Issuer Order   2.02
Judgment Currency   13.20
LCT Election   1.08(g)
LCT Test Date   1.08(g)
Legal Defeasance   8.02
Legal Holiday   13.07
Master Agreement   Definition of “Swap Contract”
Merger   Recitals
Merger Agreement   Recitals
Merger Sub 1   Preamble
Merger Sub 2   Preamble
Notes Register   2.03
Omega   Preamble
Omega III   Preamble
Omega Parent   Preamble
Paying Agent   2.03
PIK Interest   Exhibit A; Notes
PIK Notice   2.01(e)
PIK Option   Exhibit A; Notes
PIK Payment   2.01(e)
Parent Issuer   Preamble
Preferred Redemption Cash   Definition of “Closing Date Refinancing”

 

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Term

Defined in

primary obligations   Definition of “Contingent Obligations”
primary obligor   Definition of “Contingent Obligations”
Private Placement Legend   2.06(g)(1)(A)
Process Agent   13.15(a)
Prohibited Obligations   3.25(a)
Prohibited Obligations Declined Proceeds   3.25(f)
Prohibited Obligations Offer   3.25(a)
Prohibited Obligations Offer Amount   3.25(b)
Prohibited Obligations Offer Period   3.25(b)
Prohibited Obligations Offer Purchase Date   3.25(a)
protected purchaser   2.07
Redemption Date   5.01
Refunding Capital Stock   4.06(b)(ii)
Registrar   2.03
Released Guarantor   10.09
Repayment/Reinvestment Period   Definition of “Net Proceeds”
Reuters Screen LIBOR01 Page   Exhibit A; Notes
Restricted Payments   4.06(a)
Shareholder Restriction   Definition of “Restricted Cash”
Special Interest Payment Date   2.11(a)
Special Record Date   2.11(a)
Specified Beta Vendor Agreement   3.20
Specified Beta Vendor Financing Statements   3.20
Specified Post-Closing Undertaking   3.20
Sponsor Associates   Definition of “Permitted Transferee”
Successor Parent Issuer   4.04(d)
Target   Definition of “Permitted Investments”
Transfer Agent   2.03
Treasury Capital Stock   4.06(b)(ii)

 

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ARTICLE II.

 

THE NOTES

 

Section 2.01         Form and Dating.

 

(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 issued in minimum denominations of $1.00 and any integral multiples of $1.00 in excess thereof. The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuers, the Guarantors, the Trustee and the Collateral Agent, 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 Increases or Decreases 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, redemptions and PIK Payments. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with Section 2.06(h) (or, in the case of any increase resulting from a PIK Payment, in accordance with the applicable provisions of this Indenture (including Section 2.01(e)) and the Notes).

 

(c)          [reserved]

 

(d)          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 shall be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Participants through Euroclear or Clearstream.

 

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(e)          PIK Payments. If the Parent Issuer is permitted to exercise the 100% PIK Option or 50% PIK Option for any Interest Period and does so exercise the 100% PIK Option or 50% PIK Option with respect to such Interest Period, the Parent Issuer shall pay the applicable amount of PIK Interest for such Interest Period in respect of each outstanding Note on the Interest Payment Date in respect of such Interest Period by increasing the principal amount of each such outstanding Note at the end of such Interest Period by an amount equal to the PIK Interest applicable to each such outstanding Note (rounded up to the nearest whole Dollar), and an adjustment shall be made by the Trustee, upon receipt of an Issuer Order, to reflect such increase, with respect to Global Notes, in the “Schedule of Increases or Decreases in the Global Note” and, with respect to Definitive Notes, on the books and records of the Trustee (a “PIK Payment”). Following any increase in the principal amount of the outstanding Notes as a result of a PIK Payment, the Notes will bear interest on such increased principal amount from and after the date of such PIK Payment. Unless the context otherwise requires, for all purposes under this Indenture (including for purposes of calculating any redemption price or redemption amount), references to the “principal” and the “principal amount” of any Notes includes any increase in the principal amount thereof due to the addition of PIK Interest thereto as a result of any PIK Payment. If the Parent Issuer is permitted to exercise the 100% PIK Option or 50% PIK Option for any Interest Period and desires to exercise the 100% PIK Option or 50% PIK Option for such Interest Period, the Parent Issuer must deliver a notice to the Trustee no later than the day that is fifteen days prior to the first day of such Interest Period, which notice (x) indicates which PIK Option is being exercised for such Interest Period and (y) certifies that the Parent Issuer is permitted to exercise such PIK Option for such Interest Period pursuant to the terms of the Indenture and the Notes and is so exercising such PIK Option for such Interest Period (such notice, a “PIK Notice”); provided that, with respect to the Interest Period commencing on and including the Closing Date and to but excluding November 6, 2019, (i) a PIK Notice indicating that the 100% PIK Option is being exercised and certifying that the Parent Issuer is permitted to exercise such PIK Option for such Interest Period shall be deemed to have been delivered to the Trustee in accordance with the procedures described in this Section 2.01(e) and the Notes and (ii) the 100% PIK Option shall be deemed to have been validly exercised for such Interest Period.

 

Section 2.02          Execution and Authentication. One Responsible Officer of each Issuer shall sign the Notes for each Issuer by manual, facsimile or pdf signature. If the Responsible Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.

 

The Trustee will, upon receipt of a written order of the Parent Issuer signed by one Responsible Officer of the Parent Issuer (an “Issuer Order”), authenticate Notes for original issue that may be validly issued under this Indenture. On the Closing Date, the Trustee shall, upon receipt of an Issuer Order, authenticate and deliver Notes in an aggregate principal amount of $400,000,000. Notwithstanding anything to the contrary in this Indenture or any other Notes Document, the aggregate principal amount of the Notes that may be issued, authenticated and delivered under this Indenture may not exceed $400,000,000 (provided that nothing in this sentence will restrict the making of PIK Payments or the issuance of any Notes pursuant to Sections 2.06 or 2.07; provided further that in no event shall the aggregate principal amount of Notes outstanding at any time under this Indenture exceed $400,000,000 (exclusive of PIK Payments)). The immediately preceding sentence is referred to in this Indenture as the “Closed Indenture Provision”.

 

The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Parent Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

 

Section 2.03          Registrar, Transfer Agent and Paying Agent. The Parent Issuer shall maintain an office or agency where Notes may be presented for registration (the “Registrar”), an office or agency where Notes may be presented for transfer or for exchange (the “Transfer Agent”) and an office or agency where Notes may be presented for payment (the “Paying Agent”). The Registrar shall keep a register of the Notes (including the principal amount thereof and stated interest payable thereon) and of their transfer and exchange (the “Notes Register”). The registered Holder will be treated as the owner of the Notes for all purposes. Only registered Holders will have rights under this Indenture and the Notes. The Parent Issuer may have one or more co-registrars, one or more co-transfer agents and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co-registrar.

 

The Parent Issuer shall notify the Trustee in writing of the name and address of any Paying Agent, Transfer Agent or Registrar not a party to this Indenture. If the Parent Issuer fails to maintain a Registrar, Transfer Agent or Paying Agent, the Trustee shall act as such. The Parent Issuer or any of its Subsidiaries may act as Paying Agent, Registrar or Transfer Agent.

 

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The Parent Issuer initially appoints The Depository Trust Company, its nominees and successors (“DTC”) to act as Depositary with respect to the Global Notes. The Parent Issuer initially appoints the Trustee as the Registrar, Transfer Agent and Paying Agent for the Notes and the Parent Issuer may remove any Registrar, Transfer Agent or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar, Transfer Agent or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Parent Issuer and such successor Registrar, Transfer Agent or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar, Transfer Agent or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar, Transfer Agent or Paying Agent may resign at any time upon written notice to the Parent Issuer and the Trustee.

 

Section 2.04          Paying Agent to Hold Money in Trust. Prior to 11:00 a.m. New York City time, on each due date of the principal of, premium, if any, or interest on any Note is due and payable, the Parent Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or interest when due. The Parent Issuer shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed to it by an Issuer or other obligors on the Notes), shall notify the Trustee in writing of any default by the Parent Issuer or any Guarantor in making any such payment and shall during the continuance of any default by an Issuer (or any other obligor upon the Notes) or any Guarantor in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Parent Issuer or a subsidiary of the Parent Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Parent Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.04, the Paying Agent (if other than the Parent Issuer or a subsidiary of the Parent Issuer) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Parent Issuer, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.05         Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Parent Issuer shall furnish, or cause the Registrar to furnish, to the Trustee in writing at least three 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 Holders and the Parent Issuer.

 

Section 2.06         Transfer and Exchange.

 

(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. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless:

 

(1)         the Parent Issuer delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Parent Issuer within 120 days after the date of such notice from the Depositary; or

 

(2)         there has occurred and is continuing an Event of Default with respect to the Notes and (i) a Holder requests that its Global Note be exchanged for one or more Definitive Notes or (ii) a Beneficial Owner of Notes requests that its beneficial interest in a Global Note be exchanged for a Definitive Note.

 

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Upon the occurrence of any of the preceding events in clause (1) or (2) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein shall be registered in the names, and issued in any authorized denomination, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.09. 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 2.09, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the events in clause (1) or (2) above and pursuant to Section 2.06(b)(2)(B) and Section 2.06(c). A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).

 

(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:

 

(1)          Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than to any Purchaser or pursuant to Rule 144A). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

 

(2)          All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1), the transferor of such beneficial interest must deliver to the Registrar either:

 

(A)         both:

 

(i)          a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

(ii)         instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

(B)         both:

 

(i)          a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

(ii)         instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in clause (i) above;

 

provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Global Note prior to (A) the expiration of the applicable Restricted Period and (B) the receipt by the Registrar of any certification of Beneficial Ownership required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act and in the form of Exhibit B or Exhibit C, as applicable, hereto. 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).

 

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(3)         Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) and the Registrar receives the following:

 

(A)         if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(B)         if the transferee will take delivery in the form of a beneficial interest the in Regulation S Global Note, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

 

(C)         if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, a certificate to the Registrar substantially in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

 

(4)         Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) and:

 

(A)         such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act; or

 

(B)          the Registrar receives the following:

 

(i)          if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

(ii)         if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

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

 

If any such transfer or exchange is effected pursuant to subparagraph (4) above at a time when an Unrestricted Global Note has not yet been issued, the Parent Issuer shall issue and, upon receipt of an Issuer Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred or exchanged pursuant to subparagraph (4) above. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

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

 

(1)         Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon occurrence of any of the events in clause (1) or (2) of Section 2.06(a) and receipt by the Registrar of the following documentation:

 

(A)        if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

(B)         if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(C)         if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;

 

(D)         if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(E)         if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate substantially in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;

 

(F)         if such beneficial interest is being transferred to any Issuer or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; and

 

(G)         if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuers shall execute and the Trustee shall, upon receipt of an Issuer Order, authenticate and mail to the Person designated in the instructions provided, a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) 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 Trustee and the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) (except transfers pursuant to clause (G) above) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

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(2)          Beneficial Interests in Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C), a beneficial interest in the Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the applicable Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act and in the form of Exhibit B or Exhibit C, as applicable, hereto, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

 

(3)          Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in clause (1) or (2) of Section 2.06(a) and if the Registrar receives the following:

 

(A)         if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

 

(B)         if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (3), if the Parent Issuer or Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Parent Issuer and Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

The Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuers shall execute and the Trustee shall, upon receipt of an Issuer Order, authenticate and mail to the Person designated in the instructions provided pursuant to the following sentence a Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(3) 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 to the Trustee and the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will mail such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.

 

(4)          Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in clause (1) or (2) of Section 2.06(a) and satisfaction of the conditions set forth in Section 2.06(b)(2), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuers shall execute and the Trustee shall authenticate and mail 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 pursuant to this Section 2.06(c)(4) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will mail such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the Private Placement Legend.

 

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

 

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(1)         Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

(A)        if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

(B)         if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(C)         if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;

 

(D)         if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(E)         if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate substantially in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;

 

(F)         if such Restricted Definitive Note is being transferred to any Issuer or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; and

 

(G)         if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee will cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the applicable Restricted Global Note.

 

(2)         Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

 

(A)         if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

(B)         if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof;

 

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

 

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

 

(3)          Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

 

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraph (2) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of an Issuer Order in accordance with Section 2.02, 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 or exchange 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).

 

(1)          Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

 

(A)         if the transfer will be made to a QIB in accordance with Rule 144A, a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(B)         if the transfer will be made pursuant to Rule 903 or Rule 904, a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; or

 

(C)         if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, a certificate in the form of Exhibit B hereto, including the certifications required by item (3) thereof, if applicable.

 

(2)          Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:

 

(A)         if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

 

(B)         if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

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

 

(3)          Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

 

(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 Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend (the “Private Placement Legend”) in substantially the following form:

 

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.

 

BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”), AND (2) AGREES THAT IT WILL NOT WITHIN [ONE YEAR AFTER THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH ANY ISSUER OR ANY OF THEIR RESPECTIVE AFFILIATES OWNED THIS NOTE — FOR NOTES ISSUED PURSUANT TO RULE 144A AND FOR NOTES ISSUED TO INSTITUTIONAL ACCREDITED INVESTORS][40 DAYS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S — FOR NOTES ISSUED IN OFFSHORE TRANSACTIONS PURSUANT TO REGULATION S], OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (X) (I) TO ANY ISSUER OR ANY SUBSIDIARY THEREOF, (II) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (III) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE REGISTRAR A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (IF AVAILABLE), (V) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE PARENT ISSUER OR THE REGISTRAR SO REQUESTS), OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (Y) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.

 

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BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF CLAUSE (X) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE REGISTRAR AND THE PARENT ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”

 

(B)         Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) 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 (with appropriate changes in the last sentence if DTC is not the Depositary):

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE AND (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE PARENT ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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BY ACCEPTING THIS NOTE EACH HOLDER AND EACH TRANSFEREE IS DEEMED TO REPRESENT AND AGREE THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE PERIOD THAT IT HOLDS THIS NOTE (I) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, A PLAN (WHICH TERM INCLUDES (A) EMPLOYEE BENEFIT PLANS THAT ARE SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED) (“ERISA”), (B) PLANS, INDIVIDUAL RETIREMENT ACCOUNTS AND OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND (C) ENTITIES THE UNDERLYING ASSETS OF WHICH ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY PLANS DESCRIBED ABOVE IN CLAUSE (A) OR (B), OR (II) ITS PURCHASE AND HOLDING OF THIS NOTE OR ANY INTEREST THEREIN SHALL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.”

 

(3)          [reserved]

 

(4)          Original Issue Discount Legend. Each Global Note and Definitive Note issued with original issue discount (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

 

“THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO TREASURY REGULATION SECTION 1.1275-3. THIS NOTE WAS ISSUED WITH ‘ORIGINAL ISSUE DISCOUNT’ WITHIN THE MEANING OF SECTION 1272, ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON WRITTEN REQUEST, THE PARENT ISSUER WILL PROVIDE TO ANY HOLDER OF THE NOTE (1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE, AND (3) THE ORIGINAL YIELD TO MATURITY OF THE NOTE. SUCH REQUEST SHOULD BE SENT TO THE PARENT ISSUER AT 3000 LAKESIDE DRIVE, SUITE 300N, BANNOCKBURN, IL 60015, Attention: chief financial officer.”

 

(h)          Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note will be returned to or retained and cancelled by the Trustee in accordance with Section 2.10. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

(i)           General Provisions Relating to Transfers and Exchanges.

 

(1)          To permit registrations of transfers and exchanges, the Issuers will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Issuer Order in accordance with Section 2.02 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 Parent 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 charge payable upon exchange or transfer pursuant to Section 2.09, 3.23, 3.24, 3.25, 5.06 or 9.05 or the penultimate paragraph of Section 2.02).

 

(3)          Neither the Registrar, the Trustee nor any Issuer shall be required to register the transfer of or exchange 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 shall be the valid obligations of the Issuers, 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.

 

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(5)          None of the Issuer, the Registrar or the Trustee shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the transmission of a notice of redemption of the Notes to be redeemed pursuant to Section 5.03 and ending at the close of business on the day of such transmission, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date or (D) to register the transfer of or to exchange any Notes selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Asset Sale Offer.

 

(6)          Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers shall deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary. Without limiting the generality of the foregoing, a Holder, including the Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and the Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.

 

(7)          Upon surrender for registration of transfer of any Note at the office or agency of the Parent Issuer designated pursuant to Section 3.06, the Issuers shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.

 

(8)          At the option of the Holder, subject to Section 2.06(a), Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuers shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes and Definitive Notes to which the Holder making the exchange is entitled in accordance with the provisions of Section 2.02.

 

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

 

(10)        [Reserved].

 

(11)        The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Beneficial Owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.

 

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Section 2.07         Mutilated, Destroyed, Lost or Stolen Notes.

 

If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall, upon receipt of an Issuer Order, authenticate a replacement Note if the requirements of Section 8-405 of the UCC are met, such that the Holder (a) satisfies the Parent Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Parent Issuer and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the UCC (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee; provided, however, if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Parent Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Parent Issuer or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect the Trustee and (ii) the Parent Issuer to protect the Issuers, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Parent Issuer, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Issuers shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Parent Issuer in its discretion may, instead of issuing a new Note, pay such Note.

 

Upon the issuance of any new Note under this Section 2.07, the Parent Issuer may require that such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.

 

Subject to the proviso in the initial paragraph of this Section 2.07, every new Note issued pursuant to this Section 2.07, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuers, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

 

The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

Section 2.08         Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.07 and those described in this Section 2.08 as not outstanding. A Note does not cease to be outstanding in the event the Issuers or an Affiliate of any Issuer holds the Note; provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 13.05 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee has been notified in writing to be held by the Issuers or an Affiliate of any Issuer shall not be considered outstanding.

 

If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Parent Issuer receives proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.07.

 

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

 

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Section 2.09         Temporary Notes. In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuers may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Parent Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuers shall prepare and the Trustee shall, upon receipt of an Issuer Order, authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Parent Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuers shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.

 

Section 2.10         Cancellation. The Parent Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent, and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If any Issuer or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.10. The Issuers may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.

 

At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.

 

Section 2.11         Payment of Interest; Defaulted Interest.

 

Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular Record Date for such payment at the office or agency of the Parent Issuer maintained for such purpose pursuant to Section 2.03.

 

Any interest on any Note which is payable, but is not paid when the same becomes due and payable (and such nonpayment continues beyond the applicable cure period set forth in Section 6.01(a)(ii)) shall forthwith cease to be payable to the Holder on the regular Record Date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes and as provided in Section 6.03 (such defaulted interest and interest thereon herein, including any interest required to be paid under Section 6.03, collectively called “Defaulted Interest”) shall be paid by the Issuers, at their election in each case, as provided in clause (a) or (b) below:

 

(a)          The Issuers may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Parent Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 10 days after such notice) of the proposed payment (the “Special Interest Payment Date”), and at the same time the Issuers shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this Section 2.11(a). Thereupon the Parent Issuer shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than 20 calendar days and not less than 15 calendar days prior to the Special Interest Payment Date and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Parent Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Parent Issuer, the Trustee shall cause notice (such notice to be prepared by the Parent Issuer) of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.01, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in Section 2.11(b).

 

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(b)          The Issuers may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Parent Issuer to the Trustee of the proposed payment pursuant to this Section 2.11(b), such manner of payment shall be deemed practicable by the Trustee in its sole and absolute discretion.

 

Subject to the foregoing provisions of this Section 2.11, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.

 

Section 2.12         CUSIP and ISIN Numbers. The Issuers in issuing the Notes may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of such CUSIP and ISIN numbers. The Parent Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.

 

Section 2.13         Additional Issuers.

 

(a)          Each Issuer accepts joint and several liability hereunder in consideration of the financial accommodation to be provided by the Secured Parties under this Indenture and the other Notes Documents, for the mutual benefit, directly and indirectly, of each Issuer and in consideration of the undertakings of each Issuer to accept joint and several liability for the obligations of each Issuer.

 

(b)          Each Issuer shall be jointly and severally liable for the Secured Obligations, regardless of which Issuer actually receives the proceeds of Notes issued under this Indenture or the amount of proceeds received or the manner in which any Secured Party accounts for the Secured Obligations on its books and records. Each Issuer’s obligations with respect to Notes, and each Issuer’s obligations arising as a result of the joint and several liability of such Issuer hereunder, with respect to the Notes and the other Secured Obligations owing by the Issuers hereunder, shall be separate and distinct obligations, but all such obligations shall be primary obligations of each Issuer.

 

(c)          Each Issuer’s obligations arising as a result of the joint and several liability of such Issuer hereunder with respect to the Notes and the other Secured Obligations shall, to the fullest extent permitted by law, be unconditional irrespective of (A) the validity or enforceability, avoidance or subordination of the obligations of any other Issuer or of any promissory note or other document evidencing all or any part of the obligations of any other Issuer, (B) the absence of any attempt to collect the Secured Obligations from any other Issuer, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C) the waiver, consent, extension, forbearance or granting of any indulgence by any Secured Party with respect to any provision of any instrument evidencing the obligations of any other Issuer, or any part thereof, or any other agreement now or hereafter executed by any other Issuer and delivered to any Secured Party, (D) the failure by any Secured Party to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Issuer, (E) any Secured Party’s election, in any proceeding instituted under the Bankruptcy Code of the United States, of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States, (F) any borrowing or grant of a security interest by any other Issuer, as Debtor In Possession under Section 364 of the Bankruptcy Code of the United States, (G) the disallowance of all or any portion of any Secured Party’s claim(s) for the repayment of the obligations of any other Issuer under Section 502 of the Bankruptcy Code of the United States, or (H) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Issuer. With respect to each Issuer’s obligations arising as a result of the joint and several liability of such Issuer hereunder with respect to the Notes, such Issuer waives, until the Secured Obligations shall have been paid in full and this Indenture and the other Notes Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which any Secured Party now has or may hereafter have against such Issuer, any endorser or any guarantor of all or any part of the Secured Obligations, and any benefit of, and any right to participate in, any security or collateral given to any Secured Party to secure payment of the Secured Obligations or any other liability of any Issuers to the Trustee or any Holder.

 

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(d)          Upon the occurrence and during the continuation of any Event of Default, the Trustee and the Holders may proceed directly and at once, without notice, against any Issuer to collect and recover the full amount, or any portion of the Secured Obligations, without first proceeding against any other Issuer or any other Person, or against any security or collateral for the Secured Obligations. Each Issuer consents and agrees that the Trustee and the Holders shall be under no obligation to marshal any assets in favor of any Issuer or against or in payment of any or all of the Secured Obligations.

 

(e)          After the Closing Date, the Parent Issuer may, at any time and from time to time, designate any Restricted Subsidiary that is a wholly-owned Domestic Subsidiary that is treated as a corporation for U.S. federal income tax purposes as an Issuer by delivery to the Trustee of an Issuer Supplemental Indenture executed by such Subsidiary and the Parent Issuer, together with any documentation and other information with respect to such additional Issuer required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act requested by the Trustee (and to the extent not theretofore delivered on the Closing Date or otherwise), and satisfying the Collateral and Guarantee Requirement (including without limitation the actions as specified in Section 3.13 with respect to newly formed Subsidiaries), and upon such delivery and satisfaction, such Subsidiary shall for all purposes of this Indenture and the other Notes Documents be an Issuer and a party to this Issuer. As soon as practicable upon receipt of an Issuer Supplemental Indenture, the Trustee shall furnish a copy thereof to each Holder.

 

ARTICLE III.

 

AFFIRMATIVE COVENANTS

 

Section 3.01         Financial Statements

 

(a)          Within one hundred and twenty (120) days after the end of each fiscal year of the Parent Issuer (or, in the case of financial statements for the fiscal year ended December 31, 2019, on or before the date that is one hundred and fifty (150) days after the end of such fiscal year), the Parent Issuer shall deliver to the Trustee, a consolidated statement of financial condition of the Parent Issuer and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year (provided in no event shall any comparison be required to be furnished to the Trustee or the Holders with respect to any period occurring prior to the first day of the fiscal year of the Parent Issuer ended December 31, 2019; provided further in no event shall any prior year comparison financial be required to include information with respect to Omega and its Subsidiaries prior to the Closing Date), all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Controlling Parties (or, if after the Sell-Down Date, but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (such consent not to be unreasonably withheld, delayed or conditioned), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards and (ii) shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than a “going concern” or like qualification or exception as a result of a prospective or actual default or event of default with respect to any financial covenant, or the impending maturity of any Indebtedness).

 

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(b)          Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Parent Issuer, beginning with the fiscal quarter ending September 30, 2019 (or, in the case of such financial statements for the first three such deliveries, on or before the date that is sixty (60) days after the end of such fiscal quarter), the Parent Issuer shall deliver to the Trustee, a consolidated unaudited statement of financial condition of the Parent Issuer and its Subsidiaries as at the end of such fiscal quarter and the related (i) consolidated unaudited statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and (ii) consolidated unaudited statements of cash flows for such fiscal quarter and for the portion of the fiscal year then ended, and beginning one full fiscal year following the Closing Date, setting forth, in each case, in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year (provided no comparison to any period prior to the Closing Date shall be required), all in reasonable detail and certified by a Responsible Officer of the Parent Issuer as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Parent Issuer and their Restricted Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes.

 

(c)          Simultaneously with the delivery of each set of consolidated financial statements referred to in Section 3.01(a) and Section 3.01(b) above, the Parent Issuer shall deliver to the Trustee the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any and which are not required to be audited and may be in footnote form only) from such consolidated financial statements.

 

(d)          Within ten (10) Business Days after the Closing Date, the Parent Issuer shall deliver to the Trustee (x) a consolidated unaudited statement of financial condition of the Company and its Subsidiaries as at June 30, 2019 and the related (i) consolidated unaudited statements of income or operations for the fiscal quarter ended June 30, 2019 and for the portion of the fiscal year then ended and (ii) consolidated unaudited statements of cash flows for the fiscal quarter ended June 30, 2019 and for the portion of the fiscal year then ended and (y) a consolidated unaudited statement of financial condition of Omega III and its Subsidiaries as at June 30, 2019 and the related (i) consolidated unaudited statements of income or operations for the fiscal quarter ended June 30, 2019 and for the portion of the fiscal year then ended and (ii) consolidated unaudited statements of cash flows for the fiscal quarter ended June 30, 2019 and for the portion of the fiscal year then ended, all in reasonable detail and certified by a Responsible Officer of the Company or Omega III, as applicable, as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Company or Omega III, as applicable, and their respective Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes.

 

Notwithstanding the foregoing, the obligations in paragraphs (a) through (d) of this Section 3.01 may be satisfied with respect to such applicable financial information by furnishing the Parent Issuer’s Form 10-K, 10-Q or 8-K, as applicable, filed with the SEC (or, with respect to clause (d) only, by furnishing the Company’s or the Parent Issuer’s, as applicable, Form 10-Q or 8-K filed with the SEC); provided that to the extent such information is in lieu of information required to be provided under Section 3.01(a), such materials are, to the extent applicable, accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (such consent not to be unreasonably withheld, delayed or conditioned), which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than a “going concern” or like qualification or exception as a result of a prospective or actual default or event of default with respect to any financial covenant, or the impending maturity of any Indebtedness).

 

Any financial statement required to be delivered pursuant to Section 3.01(a), (b) or (d) shall not be required to include purchase accounting or recapitalization accounting adjustments relating to the Transactions or any other acquisition to the extent it is not practicable to include any such adjustments in such financial statement.

 

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Section 3.02         Quarterly Officer’s Certificate; Other Information. The Parent Issuer shall deliver to the Trustee:

 

(a)          no later than five (5) Business Days after the delivery of the financial statements referred to in Sections 3.01(a) and (b), an Officer’s Certificate that (i) states that to the best of the Responsible Officer’s knowledge there does not exist or continue, as of the date of such certificate, any condition or event which constitutes a Default or Event of Default (or, if such condition or event exists, specifies the nature and period of existence thereof and what action the Parent Issuer has taken or is taking or proposes to take with respect thereto), (ii) describes each event, condition or circumstance during the fiscal period covered by such Officer’s Certificate requiring an offer to purchase under Section 3.24 or 3.25 and (iii) includes a list of each Subsidiary of the Parent Issuer that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Officer’s Certificate (to the extent that there have been any changes in the identity or status as a Restricted Subsidiary or Unrestricted Subsidiary of any such Subsidiaries since the later of the Closing Date or the most recent list provided);

 

(b)          promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which any Issuer or any Restricted Subsidiary files with the SEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S 8) and in any case not otherwise required to be delivered to the Trustee and the Holders pursuant to any other clause of this Section 3.02; and

 

(c)           promptly after the furnishing thereof, copies of any amendment, written modification or waiver of the ABL Credit Agreement or the First Lien Credit Agreement.

 

Documents required to be delivered pursuant to Section 3.01 and Sections 3.02(b) and (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent Issuer posts such documents, or provides a link thereto on the Parent Issuer’s website on the Internet at www.optioncare.com or (ii) on which such documents are posted on the Parent Issuer’s behalf on Intralinks/IntraAgency or another relevant website, if any, to which the Trustee and each Holder and Beneficial Owner of Notes has access (whether a commercial, third-party website or whether sponsored by the Trustee); provided that (x) upon written request by the Trustee, the Parent Issuer shall deliver paper copies of such documents (which may be electronic copies delivered via electronic mail) to the Trustee for further distribution to each Holder until a written request to cease delivering paper copies is given by the Trustee and (y) the Parent Issuer shall notify (which may be by facsimile or electronic mail) the Trustee of the posting of any such documents and provide to the Trustee by electronic mail electronic versions (i.e., soft copies) of such documents. Each Trustee, Holder and Beneficial Owner of Notes shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Trustee and maintaining its copies of such documents. Notwithstanding anything to the contrary in this Section 3.02, none of the Parent Issuer or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to any Trustee, Holder or Beneficial Owner of Notes (or their respective representatives or contractors) is prohibited by Law or any binding agreement or (c) is subject to attorney-client or similar privilege or constitutes attorney work product. Delivery of reports, information and documents to the Trustee pursuant to Section 3.01 and Sections 3.02(b) and (c) is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from the information contained therein, including the Company’s compliance or non-compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or EDGAR or any website or datasite under this Indenture, or participate in any conference calls.

 

Section 3.03         Notices. Promptly after a Responsible Officer of the Parent Issuer has obtained actual knowledge thereof, the Parent Issuer shall notify the Trustee (a) of the occurrence of any Event of Default, (b) of the occurrence of an ERISA Event which would reasonably be expected to result in a Material Adverse Effect, (c) of the filing or commencement of, or any written overt threat or notice of intention of any person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority against any Issuer or any Restricted Subsidiary that would reasonably be expected to be adversely determined and, if so determined, would reasonably be expected to result in a Material Adverse Effect and (d) of any violation by any Note Party or any of their respective Restricted Subsidiaries of, or liability of any Note Party or any of their respective Restricted Subsidiaries under, any Environmental Law which would reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this Section 3.03 shall be accompanied by a written statement of a Responsible Officer of the Parent Issuer (x) that such notice is being delivered pursuant to Section 3.03(a), (b), (c) or (d) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Parent Issuer has taken and proposes to take with respect thereto.

 

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Section 3.04         Additional Information. For so long as any Notes remain outstanding and are “restricted securities” with the meaning of Rule 144, the Parent Issuer shall furnish to the Holders and prospective investors, upon their written request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

Section 3.05         Payment of Notes. The Issuers, jointly and severally, shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture, including any additional interest required to be paid as a result of the operation of Section 6.03. Principal, premium, if any, and interest shall be considered paid on the date due if by 12:00 p.m., New York City time, on such date the Trustee or the Paying Agent (if other than the Issuers or any Affiliate thereof) holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture; provided that if the Parent Issuer exercises a PIK Option with respect to any Interest Period, the applicable amount of PIK Interest in respect of such Interest Period shall be considered paid on the date due if in accordance with the terms hereof and of the Notes, a PIK Payment is made in respect of such amount of PIK Interest.

 

Section 3.06         Maintenance of Office or Agency. The Parent Issuer shall maintain an office or agency where the Notes will be payable and where, if applicable, the Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Parent Issuer in respect of the Notes and this Indenture may be served. The corporate trust office of the Trustee, which initially shall be located at the notice address for the Trustee set forth in Section 13.01, shall be such office or agency of the Parent Issuer unless the Parent Issuer shall designate and maintain some other office or agency for one or more of such purposes. The Parent Issuer shall give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Parent Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands in respect of the Notes may be made or served at the corporate trust office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The office of Trustee shall not be an office or agency of the Parent Issuer for service of legal process on the Issuers.

 

The Parent Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation. The Parent Issuer shall give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.

 

Section 3.07         Payment of Taxes. The Parent Issuer shall, and shall cause each of the Restricted Subsidiaries to, discharge or otherwise satisfy, as the same shall become due and payable in the normal conduct of its business, all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property, except, in each case, to the extent (a) any such Tax is being contested in good faith and by appropriate actions for which appropriate reserves have been established in accordance with GAAP or (b) the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 3.08         Preservation of Existence. The Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, (a) preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and (b) take all reasonable action to maintain all rights, privileges (including its good standing where applicable in the relevant jurisdiction), permits, approvals, licenses and franchises material to the ordinary conduct of its business, except, in the case of clause (a) or (b), to the extent (i) that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (except in the case of clause (a) with respect to the Parent Issuer) or (ii) pursuant to any transaction permitted by Sections 4.04 and 4.05.

 

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Section 3.09        Maintenance of Properties. Except if the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and fire, casualty or condemnation excepted.

 

Section 3.10       Maintenance of Insurance. The Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, maintain with insurance companies that the Parent Issuer believes (in the good faith judgment of management) are financially sound and reputable at the time the relevant coverage is placed or renewed, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Parent Issuer and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons. Each such policy of insurance (other than business interruption insurance (if any), director and officer insurance and worker’s compensation insurance) shall as appropriate (i) name the Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interest may appear or (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as loss payee thereunder.

 

Section 3.11        Compliance with Laws. The Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, comply with the requirements of all Laws and all orders, writs, injunctions and decrees of any Governmental Authority applicable to it or to its business or property, except if the failure to comply therewith would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 3.12        Books and Records. The Parent Issuer shall, and will cause its Restricted Subsidiaries to, maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP and which reflect all material financial transactions and matters involving the assets and business of the Parent Issuer or a Restricted Subsidiary, as the case may be (it being understood and agreed that certain Foreign Subsidiaries maintain individual books and records in conformity with generally accepted accounting principles in their respective countries of organization and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).

 

Section 3.13       Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:

 

(a)          upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:

 

(i)          within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:

 

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(A)        cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;

 

(B)        cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and

 

(C)        take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;

 

(ii)         to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;

 

(iii)        if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).

 

(b)          requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”

 

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Section 3.14        Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, (a) comply, and use commercially reasonable efforts to take all reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply, with all applicable Environmental Laws and Environmental Permits, (b) obtain and renew all Environmental Permits necessary for its operations and properties and (c) in each case to the extent the Note Parties are required by applicable Environmental Laws, conduct any investigation, remedial, cleanup or other corrective action necessary to address Hazardous Materials at any property or facility in accordance with applicable Environmental Laws.

 

Section 3.15        Further Assurances. Promptly upon reasonable request by any Controlling Party (prior to the Sell-Down Date) or the Collateral Agent, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, (i) correct any mutually identified material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as any Controlling Party or the Collateral Agent may reasonably request from time to time in order to (x) carry out more effectively the purposes of the Collateral Documents and/or (y) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens (subject to Liens permitted hereunder) intended to be created thereunder, in each case, to the extent required pursuant to the Collateral and Guarantee Requirement.

 

Section 3.16         Designation of Subsidiaries. The Parent Issuer may at any time after the Closing Date designate any Restricted Subsidiary of the Parent Issuer (other than a Subsidiary Issuer (unless the Parent Issuer has delivered a notice terminating such Subsidiary Issuer’s status as an Issuer hereunder in accordance with the definition of “Issuer”)) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Event of Default under Section 6.01(a) or (f) (solely with respect to the Parent Issuer) shall have occurred and be continuing and (ii) in no event shall an Unrestricted Subsidiary acquire (including pursuant to the designation of a Restricted Subsidiary as an Unrestricted Subsidiary) Material IP from the Parent Issuer or any Restricted Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the applicable Issuer therein at the date of designation as set forth in the definition of “Investment”. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (a) the incurrence (at the time of designation) of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (b) a Return on any Investment by the applicable Issuer in Unrestricted Subsidiaries pursuant to the definition of “Investment”.

 

Section 3.17         Maintenance of Ratings. The Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, use commercially reasonable efforts to maintain a public corporate credit rating (but not any specific rating) from S&P and a public corporate family rating (but not any specific rating) from Moody’s, in each case in respect of the Parent Issuer (or such other entity as is reasonably acceptable to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative)).

 

Section 3.18         Use of Proceeds. The Parent Issuer shall use the proceeds of the Initial Notes on the Closing Date, whether directly or indirectly, in a manner consistent with the uses set forth in the recitals to this Indenture.

 

Section 3.19         Post-Closing Matters. The Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, cause to be delivered or performed the documents and other agreements set forth on Schedule 3.19 within the time frames specified in such Schedule 3.19. All conditions precedent and representations contained in the Note Purchase Agreement, this Indenture and the other Notes Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods required above, rather than as elsewhere provided in the Notes Documents); provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 3.19 and (y) all representations and warranties relating to the Collateral Documents shall be required to be true immediately after the actions required to be taken by this Section 3.19 have been taken (or were required to be taken) and the parties hereto acknowledge and agree that the failure to take any of the actions required above, within the relevant time periods required above, shall give rise to an immediate Event of Default pursuant to this Indenture. 

 

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Section 3.20         Specified Beta Vendor Financing Statements. On or prior to the date that is six months after the Closing Date (or such later date as agreed to by the Designated First Lien Representative in its reasonable discretion), the Parent Issuer shall either (i) cause to be terminated those financing statements set forth on Schedule 3.20 (the “Specified Beta Vendor Financing Statements”) and terminate (or amend to remove any lien grant) any prime vendor agreement or other similar agreement between any one or more of the Parent Issuer and its Restricted Subsidiaries on the one hand and any vendor or similar contractual counterparty thereof on the other hand the obligations under which are secured by any collateral described in any Specified Beta Vendor Financing Statement (each such agreement, a “Specified Beta Vendor Agreement” and such obligations, the “Specified Beta Vendor Obligations”) or (ii) cause the Liens securing the Specified Beta Vendor Obligations to be subordinated to the Liens securing the Secured Obligations, the ABL Obligations and the First Lien Secured Obligations pursuant to one or more intercreditor agreements in form and substance reasonably satisfactory to the Controlling Parties in their reasonable discretion (the undertaking in this Section 3.20, the “Specified Post-Closing Undertaking”). Notwithstanding the foregoing, the Specified Post-Closing Undertaking shall be satisfied if (A) (x) the aggregate amount of the Specified Beta Vendor Obligations owed to any vendor does not exceed $2,500,000 at any time outstanding and (y) the total value of all assets of the Parent Issuer or the applicable Restricted Subsidiary subject to such Liens that have not been terminated or subordinated in accordance with the foregoing sentence does not exceed $2,500,000 at any time outstanding and (B) the Parent Issuer has used commercially reasonable efforts to cause such Liens to be so terminated or subordinated to the liens securing the Secured Obligations pursuant to one or more intercreditor agreements in form and substance reasonably satisfactory to the Controlling Parties in their reasonable discretion.

 

Section 3.21         Fiscal Year. From and after the Closing Date, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, maintain its fiscal year as in effect on the Closing Date; provided, however, that the Parent Issuer may (x) align the dates of such fiscal year of any Restricted Subsidiary whose fiscal year ends on a date other than that of the Parent Issuer or (y) upon written notice to the Trustee change its fiscal year to any other fiscal year, and, in the case of this clause (y), the Parent Issuer and the Trustee will, and are hereby authorized by the Holders to, make any adjustments to this Indenture that are necessary to reflect such change in fiscal year (and that, prior to the Sell-Down Date, are reasonably satisfactory to the Controlling Parties).

 

Section 3.22         Quarterly Call. Following delivery (or, if later, required delivery) of financial statements pursuant to Section 3.01(a) or Section 3.01(b), upon the request of any Controlling Party (or, if after the Sell-Down Date, the Trustee acting at the direction of the Required Holders), the Parent Issuer shall host, at times selected by the Parent Issuer and reasonably acceptable to the Controlling Parties, quarterly conference calls with the Holders and Beneficial Owners of Notes to review the financial results of operations and the financial condition of the Parent Issuer and the Restricted Subsidiaries; it being understood and agreed that such conference calls may be a single conference call together with investors holding other securities or debt of the Parent Issuer and/or Restricted Subsidiaries, so long as the Holders and Beneficial Owners of Notes are given an opportunity to ask questions on such conference call.

 

Section 3.23         Change of Control

 

(a)          If a Change of Control occurs, unless the Parent Issuer has previously or concurrently delivered a redemption notice with respect to all of the outstanding Notes under Section 5.07, the Parent Issuer shall make an offer to purchase all of the Notes pursuant to the offer described in this Section 3.23 (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to but excluding the date of purchase (the “Change of Control Offer Purchase Date”).

 

Within 30 days following any Change of Control, unless the Parent Issuer has previously or concurrently delivered a redemption notice with respect to all of the outstanding Notes under Section 5.07, the Parent Issuer will deliver notice of such Change of Control Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, describing the transaction or transactions that constitute the Change of Control and with the following information:

 

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(A)         that a Change of Control Offer is being made pursuant to this Section 3.23, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Parent Issuer;

 

(B)         the purchase price specified in Section 3.23(a) and the Change of Control Offer Purchase Date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is delivered, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described in clause (H) below;

 

(C)         that any Note not properly tendered will remain outstanding and continue to accrue interest in accordance with the terms of this Indenture and the Notes;

 

(D)         that unless the Parent Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Offer Purchase Date;

 

(E)         that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Offer Purchase Date;

 

(F)         that Holders will be entitled to withdraw their tendered Notes and their election to require the Parent Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;

 

(G)         that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion of the Notes must be equal to at least $1.00 or any integral multiple of $1.00 in excess thereof;

 

(H)         if such notice is delivered prior to the occurrence of a Change of Control, stating that a definitive agreement is in place for such Change of Control and the Change of Control Offer is conditional on the occurrence of such Change of Control and that the Change of Control Offer Purchase Date may be delayed until such condition shall be satisfied, and that such Change of Control Offer Purchase Date may not occur and that such notice may be rescinded in the event that such condition shall not have been satisfied by the Change of Control Offer Purchase Date, or by the Change of Control Offer Purchase Date as so delayed; and

 

(I)         the other instructions, as determined by the Parent Issuer, consistent with this Section 3.23, that a Holder must follow.

 

The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will, upon receipt of an Issuer Order, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof. The Parent Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Offer Purchase Date.

 

If the Change of Control Offer Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to (but not including) the Change of Control Offer Purchase Date shall be paid to the Person in whose name a tendered Note accepted for purchase is registered at the close of business on such Record Date, and unless the Parent Issuer defaults in making payment for such tendered Note pursuant to the Change of Control Offer, no additional interest shall be payable to Holders of such tendered Note.

 

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(b)          On the Change of Control Offer Purchase Date, the Parent Issuer shall, to the extent permitted by law,

 

(A)         accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,

 

(B)         deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and

 

(C)         deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Parent Issuer.

 

(c)          The Parent Issuer shall not be required to make a Change of Control Offer following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.23 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (2) a notice of redemption with respect to all of the outstanding Notes has been given pursuant to Section 5.07, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary in this Section 3.23, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for such Change of Control at the time of making of the Change of Control Offer.

 

(d)          The Parent Issuer shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Parent Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.

 

(e)          Other than as specifically provided in this Section 3.23, any purchase pursuant to this Section 3.23 shall be made pursuant to the applicable provisions of Sections 5.01 through 5.06.

 

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Section 3.24         Offer to Purchase by Application of Net Proceeds.

 

(a)          (1) If any Issuer or any of its Restricted Subsidiaries Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 4.05(a), (b), (c), (d), (e), (f) (except as set forth in the proviso thereof), (g), (h), (i), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x), (y), (z) or (aa)) that results in the receipt by any Issuer or any Restricted Subsidiary of Net Proceeds or (2) any Casualty Event occurs that results in the receipt by any Issuer or any of its Restricted Subsidiaries of Net Proceeds, then, in each case of clauses (1) and (2), such Issuer shall, subject to Section 3.24(b), apply 100% of such Net Proceeds on or prior to the date which is ten (10) Business Days after the date of the receipt by such Issuer or such Restricted Subsidiary of such Net Proceeds (or if any Issuer or any Restricted Subsidiary (A) intends to use proceeds of any such non-excluded Disposition within the applicable Repayment/Reinvestment Period in accordance with the first proviso in clause (a) of the definition of “Net Proceeds” or (B) has contractually committed prior to the last day of such Repayment/Reinvestment Period to use such proceeds pursuant to clauses (y) of the first proviso of clause (a) of the definition of “Net Proceeds”, such Issuer shall apply 100% of any such proceeds constituting Net Proceeds in accordance with such proviso on or prior to the date which is ten (10) Business Days after the expiration of such Repayment/Reinvestment Period) to commence an offer to all Holders to purchase Notes in accordance with the procedures specified in this Section 3.24(a) and Sections 3.24(c) through (g) (the “Asset Sale Offer”) at a price in cash equal to the sum of (i) 100% of the principal amount of such Notes, plus (ii) accrued and unpaid interest to (but excluding) the date of purchase (the “Asset Sale Offer Purchase Date”); provided that if at the time that any Asset Sale Offer would be required, any Issuer or any Restricted Subsidiary is required to, or to offer to, use the Net Proceeds from the applicable Disposition or Casualty Event to purchase or prepay any Indebtedness that is secured by Liens on a pari passu basis in respect of the Term Loan Priority Collateral with Liens securing the Secured Obligations pursuant to the terms of the documentation governing such Indebtedness (“Other Applicable Indebtedness”), then such Issuer shall allocate the Net Proceeds from such Disposition or Casualty Event on a pro rata basis between the Notes, on the one hand, and such Other Applicable Indebtedness required to be purchased or prepaid, or required to be subject to an offer to purchase or prepay, pursuant to the documentation governing such Other Applicable Indebtedness on the other hand (determined on the basis of the aggregate outstanding principal amount of the Notes and Other Applicable Indebtedness required to be purchased or prepaid, or required to be subject to an offer to purchase or prepay, pursuant to the documentation governing such Other Applicable Indebtedness; provided that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of Net Proceeds required to be allocated to such Other Applicable Indebtedness pursuant to the documentation governing such Other Applicable Indebtedness, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Notes), with such Net Proceeds allocated to the Notes being used to make an Asset Sale Offer with respect to the Notes in accordance with the terms of this Section 3.24 and with such Net Proceeds allocated to such Other Applicable Indebtedness required to be purchased or prepaid, or required to be subject to an offer to purchase or prepay, pursuant to the documentation governing such Other Applicable Indebtedness being used to make the required purchase, prepayment or offer to purchase or prepay; provided further that to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness purchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to make an Asset Sale Offer with respect to the Notes in accordance with the terms of this Section 3.24 without giving effect to this sentence. Payment for any Notes so purchased shall be made in the same manner as cash interest payments are made.

 

(b)          Notwithstanding any other provisions of this Section 3.24, (i) to the extent that any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited, restricted or delayed by applicable local law (or, in the case of any Foreign Subsidiary that is not wholly-owned by an Issuer, by such Foreign Subsidiary’s Organization Documents or other agreement (so long as such restrictions were not implemented for the purpose of avoiding the requirements of this Section 3.24)) from being repatriated to the United States, an amount equal to the portion of such Net Proceeds so affected will not be required to be applied to make an Asset Sale Offer pursuant to this Section 3.24 at the times provided in this Section 3.24 so long, but only so long, as the applicable local law or applicable Organization Documents will not permit repatriation to the United States (each Issuer hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation or otherwise overcome or eliminate any such restrictions on repatriation even if such Issuer does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds, as applicable, will otherwise be subject to the requirements of this Section 3.24), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such Net Proceeds will be promptly applied (net of additional taxes that are or would be payable or reserved against as a result thereof) to make an Asset Sale Offer pursuant to this Section 3.24 to the extent provided herein and (ii) to the extent that such Issuer has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or any Foreign Casualty Event would have adverse tax or regulatory consequences to the Issuers or any of their direct or indirect shareholders or Subsidiaries (as determined in good faith by such Issuer) an amount equal to such Net Proceeds so affected will not be required to be applied to make an Asset Sale Offer at the times provided in this Section 3.24. Notwithstanding anything to the contrary, nothing in this Indenture shall be construed to require any Foreign Subsidiary to repatriate cash to the United States.

 

(c)          Each Asset Sale Offer shall remain open for not less than 30 or more than 60 days immediately following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). Within three (3) Business Days immediately after the termination of the Asset Sale Offer Period, the Asset Sale Offer Purchase Date shall occur and such Issuer shall apply the Net Proceeds subject to the Asset Sale Offer (the “Asset Sale Offer Amount”) to purchase the principal amount of Notes properly tendered.

 

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(d)         The Parent Issuer shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Parent Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.

 

(e)         If the Asset Sale Offer Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to (but not including) the Asset Sale Offer Purchase Date shall be paid to the Person in whose name a tendered Note accepted for purchase is registered at the close of business on such Record Date, and unless the Parent Issuer defaults in making payment for such tendered Note pursuant to the Asset Sale Offer, no additional interest shall be payable to Holders of such tendered Note.

 

(f)          Upon the commencement of an Asset Sale Offer, the Parent Issuer shall send, by first class or electronic mail, postage prepaid, a notice to each of the Holders, which shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders of Notes. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

 

(A)        that the Asset Sale Offer is being made pursuant to this Section 3.24 and the length of time the Asset Sale Offer shall remain open;

 

(B)         the Asset Sale Offer Amount, the purchase price specified in Section 3.24(a) and the Asset Sale Offer Purchase Date;

 

(C)         that any Note not tendered or accepted for payment shall continue to accrue interest;

 

(D)         that, unless the Parent Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Purchase Date;

 

(E)         that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have Notes purchased in minimum denominations of $1.00 or integral multiples of $1.00 in excess thereof; provided that the unpurchased portion of such Holders’ Notes must be equal to at least $1.00 or any integral multiple of $1.00 in excess thereof;

 

(F)         that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Parent Issuer or any designated agent for such purchase, as the case may be, at the address specified in the notice delivered at the close of business on the third Business Day before the Asset Sale Offer Purchase Date;

 

(G)        that Holders shall be entitled to withdraw their election if the Parent Issuer or any designated agent for such purchase, as the case may be, receives, not later than the close of business on the second Business Day preceding the expiration of the Asset Sale Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;

 

(H)        that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Asset Sale Offer Amount shall be allocated and the Trustee shall select the Notes or portions thereof to be accepted for payment by the Parent Issuer in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed (to the extent such listing and the requirements thereof are known to the Trustee) and in accordance with the procedures and requirements of DTC, or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, on a pro rata basis; and

 

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(I)          that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.

 

(g)         If the aggregate principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer is less than or equal to the Asset Sale Offer Amount, the Parent Issuer shall accept for payment all such Notes or portions thereof so tendered, and shall deliver to the Holders (with a copy to the Trustee) a notice stating that such Notes or such portions thereof were accepted for payment by the Parent Issuer in accordance with the terms of this Section 3.24. To the extent the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the difference between the Asset Sale Offer Amount and such aggregate principal of Notes so tendered is referred to in this Indenture as “Asset Sale Declined Proceeds.” If the aggregate principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer is greater than the Asset Sale Offer Amount, (x) the Trustee shall select the Notes or portions thereof to be accepted for payment by the Parent Issuer in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed (to the extent such listing and the requirements thereof are known to the Trustee) and in accordance with the procedures and requirements of DTC, or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, on a pro rata basis and (y) the Parent Issuer shall accept for payment such Notes or portions thereof selected by the Trustee and shall deliver to the Holders (with a copy to the Trustee) a notice stating that such Notes or such portions thereof were accepted for payment by the Parent Issuer in accordance with the terms of this Section 3.24. On the Asset Sale Offer Purchase Date, the Parent Issuer shall mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes or portions thereof tendered by such Holder and accepted by the Parent Issuer for purchase, and the Issuers shall promptly execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and deliver (or cause to be transferred by book-entry) a new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note), in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof. Any Note or portion thereof tendered in the Asset Sale Offer but not so accepted shall be promptly mailed or delivered by the Parent Issuer to the Holder thereof.

 

Other than as specifically provided in this Section 3.24, any purchase pursuant to this Section 3.24 shall be made pursuant to the applicable provisions of Sections 5.01 through 5.06.

 

Section 3.25         Offer to Purchase With Net Proceeds of Prohibited Obligations. If from and after the Closing Date any Issuer or any Restricted Subsidiary incurs or issues any Indebtedness, Disqualified Equity Interests or Preferred Stock not permitted to be incurred or issued pursuant to Section 4.03 (collectively, “Prohibited Obligations”), the Parent Issuer shall apply 100% of the Net Proceeds therefrom to commence an offer to all Holders to purchase Notes in accordance with the procedures in this Section 3.25 (a “Prohibited Obligations Offer”) on or prior to the date which is ten (10) Business Days after the receipt by such Issuer or such Restricted Subsidiary of such Net Proceeds at a price in cash equal to the sum of (i) 100% of the principal amount of such Notes, plus (ii) accrued and unpaid interest to (but excluding) the date of purchase (the “Prohibited Obligations Offer Purchase Date”); provided that if any Issuer or any Restricted Subsidiary is required pursuant to the terms of any First Lien Loan Documents to use the Net Proceeds from such Prohibited Obligations to prepay or offer to purchase any First Lien Indebtedness, such Issuer or such Restricted Subsidiary shall only be required to use the Net Proceeds to commence a Prohibited Obligations Offer pursuant to this Section 3.25 to the extent holders of First Lien Indebtedness have declined to have the First Lien Indebtedness owing to them prepaid or purchased with such Net Proceeds and only with the amount of such Net Proceeds so declined or rejected.

 

(b)          Each Prohibited Obligations Offer shall remain open for not less than 30 or more than 60 days immediately following its commencement, except to the extent that a longer period is required by applicable law (the “Prohibited Obligations Offer Period”). Within three (3) Business Days immediately after the termination of the Prohibited Obligations Offer Period, the Prohibited Obligations Offer Purchase Date shall occur and the Parent Issuer shall apply the Net Proceeds subject to the Prohibited Obligations Offer (the “Prohibited Obligations Offer Amount”) to purchase the principal amount of Notes properly tendered.

 

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(c)          The Parent Issuer shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to a Prohibited Obligation Offer. To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Parent Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.

 

(d)          If the Prohibited Obligations Offer Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to (but not including) the Prohibited Obligations Offer Purchase Date shall be paid to the Person in whose name a tendered Note accepted for purchase is registered at the close of business on such Record Date, and unless the Parent Issuer defaults in making payment for such tendered Note pursuant to the Prohibited Obligation Offer, no additional interest shall be payable to Holders of such tendered Note.

 

(e)          Upon the commencement of a Prohibited Obligations Offer, the Parent Issuer shall send, by first class or electronic mail, postage prepaid, a notice to each of the Holders, which shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Prohibited Obligations Offer. The Prohibited Obligations Offer shall be made to all Holders of Notes. The notice, which shall govern the terms of the Prohibited Obligations Offer, shall state:

 

(A)         that the Prohibited Obligations Offer is being made pursuant to this Section 3.25 and the length of time the Prohibited Obligation Offer shall remain open;

 

(B)         the Prohibited Obligations Offer Amount, the purchase price specified in Section 3.25(a) and the Prohibited Obligations Offer Purchase Date;

 

(C)         that any Note not tendered or accepted for payment shall continue to accrue interest;

 

(D)         that, unless the Parent Issuer defaults in making such payment, any Note accepted for payment pursuant to the Prohibited Obligations Offer shall cease to accrue interest after the Prohibited Obligations Offer Purchase Date;

 

(E)         that Holders electing to have a Note purchased pursuant to a Prohibited Obligations Offer may only elect to have Notes purchased in minimum denominations of $1.00 or integral multiples of $1.00 in excess thereof; provided that the unpurchased portion of such Holders’ Notes must be equal to at least $1.00 or any integral multiple of $1.00 in excess thereof;

 

(F)         that Holders electing to have a Note purchased pursuant to any Prohibited Obligations Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Parent Issuer or any designated agent for such purchase, as the case may be, at the address specified in the notice delivered at the close of business on the third Business Day before the Prohibited Obligations Offer Purchase Date;

 

(G)         that Holders shall be entitled to withdraw their election if the Parent Issuer or any designated agent for such purchase, as the case may be, receives, not later than the close of business on the second Business Day preceding the expiration of the Prohibited Obligations Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;

 

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(H)        that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Prohibited Obligations Offer Amount, the Prohibited Obligations Offer Amount shall be allocated and Trustee shall select the Notes or portions thereof to be accepted for payment by the Parent Issuer in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed (to the extent such listing and the requirements thereof are known to the Trustee) and in accordance with the procedures and requirements of DTC, or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, on a pro rata basis; and

 

(I)          that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.

 

(f)          If the aggregate principal amount of Notes or portions thereof tendered pursuant to the Prohibited Obligations Offer is less than or equal to the Prohibited Obligations Offer Amount, the Parent Issuer shall accept for payment all such Notes or portions thereof so tendered, and shall deliver to the Holders (with a copy to the Trustee) a notice stating that such Notes or such portions thereof were accepted for payment by the Parent Issuer in accordance with the terms of this Section 3.25. To the extent the aggregate principal amount of Notes tendered pursuant to an Prohibited Obligations Offer is less than the Prohibited Obligations Offer Amount, the difference between the Prohibited Obligations Offer Amount and such aggregate principal of Notes so tendered is referred to in this Indenture as “Prohibited Obligations Declined Proceeds” and Prohibited Obligations Declined Proceeds, together with Asset Sale Declined Proceeds, are referred to in this Indenture as “Declined Proceeds”). If the aggregate principal amount of Notes or portions thereof tendered pursuant to the Prohibited Obligations Offer is greater than the Prohibited Obligations Offer Amount, (x) the Trustee shall select the Notes or portions thereof to be accepted for payment by the Parent Issuer in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed (to the extent such listing and the requirements thereof are known to the Trustee) and in accordance with the procedures and requirements of DTC, or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, on a pro rata basis and (y) the Parent Issuer shall accept for payment such Notes or portions thereof selected by the Trustee and shall deliver to the Holders (with a copy to the Trustee) a notice stating that such Notes (or such portions thereof) were accepted for payment by the Parent Issuer in accordance with the terms of this Section 3.25. On the Prohibited Obligations Offer Purchase Date, the Parent Issuer shall mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes (or portions thereof) tendered by such Holder and accepted by the Parent Issuer for purchase, and the Issuers shall promptly execute, and the Trustee shall, upon receipt of an Issuer Order authenticate, and deliver (or cause to be transferred by book-entry) a new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note), in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof. Any Note or portion thereof tendered in the Prohibited Obligations Offer but not so accepted shall be promptly mailed or delivered by the Parent Issuer to the Holder thereof.

 

Other than as specifically provided in this Section 3.25, any purchase pursuant to this Section 3.25 shall be made pursuant to the applicable provisions of Sections 5.01 through 5.06.

 

ARTICLE IV.

 

NEGATIVE COVENANTS

 

Section 4.01         Liens.

 

The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

 

(a)          Liens created pursuant to any Notes Document securing the Secured Obligations;

 

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(b)         Liens (other than Specified Beta Vendor Financing Statements) existing on the Closing Date; provided that any Lien securing Indebtedness in excess of (x) $2,500,000 individually or (y) $12,500,000 in the aggregate (when taken together with all other Liens securing obligations outstanding in reliance on this clause (b) that are not listed in Schedule 4.01(b)) shall only be permitted to the extent such Lien is listed on Schedule 4.01(b), and any modifications, replacements, renewals, refinancings or extensions thereof, which may provide that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender; provided further that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 4.03 and customary security deposits in connection therewith and (B) proceeds and products thereof and (ii) the replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens, to the extent constituting Indebtedness, is permitted by Section 4.03;

 

(c)         Liens for taxes, assessments or governmental charges that are not overdue for a period of more than thirty (30) days (or any applicable grace period related thereto, if longer) or that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction;

 

(d)         statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens or other customary Liens (other than in respect of Indebtedness) in favor of landlords, so long as, in each case, such Liens secure amounts not overdue for a period of more than sixty (60) days or if more than sixty (60) days overdue, are unfiled and no other action has been taken to enforce such Liens or are being contested in good faith and by appropriate actions;

 

(e)         (i) pledges or deposits in the ordinary course of business in connection with, and obligations in respect of letters of credit (other than Letters of Credit (as defined in the ABL Credit Agreement)) or bank guarantees incurred in the ordinary course of business with respect to, workers’ compensation, health, disability or employee benefits, unemployment insurance and other social security laws or similar legislation or regulation or other insurance-related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Parent Issuer or any of the Restricted Subsidiaries;

 

(f)          pledges or deposits to secure, and obligations in respect of letters of credit (other than Letters of Credit (as defined in the ABL Credit Agreement)) or bank guarantees incurred in the ordinary course of business with respect to the performance of bids, trade contracts, warranties, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business or consistent with industry practice;

 

(g)         easements, rights-of-way, building codes, covenants, conditions, restrictions (including zoning restrictions), encroachments, licenses, protrusions and other similar encumbrances and minor title defects affecting Real Property and that do not in the aggregate materially interfere with the ordinary conduct of the business of the Parent Issuer or the Restricted Subsidiaries, taken as a whole;

 

(h)         Liens (i) securing judgments or orders for the payment of money not constituting an Event of Default under Section 6.01(h), (ii) arising out of judgments or awards against any Issuer or any Restricted Subsidiary with respect to which an appeal or other proceeding for review is then being pursued and (iii) notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings for which adequate reserves have been made;

 

(i)          leases, licenses, subleases or sublicenses (including the provision of software or the licensing of other intellectual property rights) and terminations thereof, in each case granted to others in the ordinary course of business (or other agreements under which the Parent Issuer or any Restricted Subsidiary has granted rights to end users to access and use the Parent Issuer’s or any Restricted Subsidiary’s products, technologies or services in the ordinary course of business) which (i) do not interfere in any material respect with the business of the Parent Issuer and the Restricted Subsidiaries, taken as a whole and (ii) do not secure any Indebtedness;

 

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(j)          Liens (i) in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (ii) on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods in the ordinary course of business;

 

(k)         Liens (i) of a collection bank arising under Section 4-208 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, (iii) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions, (iv) in respect of Cash Management Services permitted under Section 4.03(l) and (v) in respect of Swap Contracts; provided that the aggregate amount of secured obligations under Swap Contracts (other than Secured Hedge Agreements and ABL Banking Services Agreements (each as defined in the ABL Intercreditor Agreement)) shall not at any time exceed $6,125,000;

 

(l)          Liens (i) on cash advances in favor of the seller of any property to be acquired in an Permitted Acquisition or other similar Investment permitted pursuant to this Indenture, in each case to be applied against the purchase price for such Permitted Acquisition or other permitted Investment and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 4.05, in each case, solely to the extent such Permitted Acquisition or other acquisition or Disposition, as the case may be, would have been permitted under this Indenture on the date of the creation of such Lien;

 

(m)        Liens (i) in favor of the Parent Issuer or a Restricted Subsidiary on assets of a Non-Note Party or (ii) in favor of the Parent Issuer or any Guarantor on assets of a Restricted Subsidiary;

 

(n)         any interest or title (and all encumbrances and other matters affecting such interest or title) of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under leases, subleases, licenses or sublicenses entered into by the Parent Issuer or any Restricted Subsidiary in the ordinary course of business;

 

(o)         Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Parent Issuer or any Restricted Subsidiary in the ordinary course of business;

 

(p)         Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 4.06 or the definition of “Permitted Investments”;

 

(q)         Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;

 

(r)          Liens that are contractual rights of set-off or rights of pledge (i) relating to the establishment of depository relations with banks or other deposit-taking financial institutions and not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Parent Issuer or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Parent Issuer or any Restricted Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers or suppliers of the Parent Issuer or any Restricted Subsidiaries in the ordinary course of business;

 

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(s)         Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by the Parent Issuer or any Restricted Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;

 

(t)          ground leases in respect of Real Property on which facilities owned or leased by the Parent Issuer or any Restricted Subsidiary are located;

 

(u)         Liens to secure Indebtedness (other than Refinancing Indebtedness) permitted under Section 4.03(e); provided that (i) such Liens are created no later than 270 days after the acquisition, construction, repair, lease or improvement of the property subject to such Liens, (ii) such Liens do not at any time encumber property (except for replacements, additions and accessions to such property) other than the property financed by such Indebtedness and the proceeds and products thereof and customary security deposits and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to, or acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

 

(v)         Liens on property of any Non-Note Party, which Liens secure Indebtedness of any Non-Note Party permitted under Section 4.03 or other obligations of any Non-Note Party not constituting Indebtedness;

 

(w)        Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 3.16) or otherwise assumed pursuant to Section 4.03(g), in each case after the Closing Date; provided that (i) such Lien was not entered into in anticipation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property and customary security deposits in connection therewith subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender and (iii) the Indebtedness secured thereby is permitted under Section 4.03(e), (g), (m)(ii) or (s) (and any Refinancing Indebtedness in respect of the foregoing);

 

(x)          (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any Real Property that does not materially interfere with the ordinary conduct of the business of the Parent Issuer and the Restricted Subsidiaries, taken as a whole;

 

(y)         Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;

 

(z)          Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

 

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(aa)       the modification, replacement, renewal or extension of any Lien permitted by clauses (b), (u), (v), (w), (aa), (cc), (dd), (gg), (ii) and (jj) of this Section 4.01; provided that (i) subject, in the case of Liens permitted by Section 4.01 (dd), (gg) and (jj) (and any Liens permitted under this clause (aa) which were originally granted under Section 4.01 (dd), (gg) or (jj) respectively), to the final proviso of this clause (aa), at the time of such modification, replacement, renewal or extension the Lien does not extend to any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof and, in the case of Liens permitted by Section 4.01(w) (and any Liens permitted under this clause (aa) which were originally granted under Section 4.01(w)), after-acquired property of the applicable Restricted Subsidiary to the extent the security agreements in place at the time of the acquisition of such Restricted Subsidiary required the grant of such Lien in after-acquired property and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 4.03 (to the extent constituting Indebtedness); provided that (v) if any Lien (prior to the modification, replacement, renewal or extension thereof) was subject to the ABL Intercreditor Agreement, such Lien (subsequent to the modification, replacement, renewal or extension thereof) shall be subject to the ABL Intercreditor Agreement and accorded the same (or lesser) priority as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof), (w) if any Lien (prior to the modification, replacement, renewal or extension thereof) was subject to the Parity Lien Intercreditor Agreement, such Lien (subsequent to the modification, replacement, renewal or extension thereof) shall be subject to the Parity Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement and accorded the same (or lesser) priority with respect to the Collateral (without regard to control of remedies) as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof), (x) if any Lien (prior to the modification, replacement, renewal or extension thereof) was subject to the First Lien/Second Lien Intercreditor Agreement, such Lien (subsequent to the modification, replacement, renewal or extension thereof) shall be subject to the First Lien/Second Lien Intercreditor Agreement and accorded the same (or lesser) priority with respect to the Collateral (without regard to control of remedies) as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof), (y) if any Lien (prior to the modification, replacement, renewal or extension thereof) was subject to the Junior Lien Intercreditor Agreement, such Lien (subsequent to the modification, replacement, renewal or extension thereof) shall be subject to the Junior Lien Intercreditor Agreement and accorded the same (or lesser) priority with respect to the Collateral (without regard to control of remedies) as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof) and (z) if any Lien (prior to the modification, replacement, renewal or extension thereof) was subject to a lien subordination and intercreditor agreement (other than an Intercreditor Agreement), such Lien (subsequent to the modification, replacement, renewal or extension thereof) shall be subject to such lien subordination and intercreditor agreement and accorded the same (or lesser) priority with respect to the Collateral (without regard to control of remedies) as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof) or in each case of subclauses (v), (w), (x), (y) and (z) shall be subject to a substantially similar or more junior lien subordination and intercreditor agreement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) so long as such Lien (subsequent to the modification, replacement, renewal or extension thereof) is accorded the same (or lesser) priority with respect to the Collateral (without regard to control of remedies) as was accorded to such Lien (prior to the modification, replacement, renewal or extension thereof); provided further that modifications, replacements, renewals or extensions of Liens permitted by Section 4.01(dd), (gg) and (jj) (and any Liens permitted under this clause (aa) which were originally granted under Section 4.01(dd), (gg) or (jj), respectively), in each case may be secured by after-acquired Collateral of the applicable Note Party to the extent the security agreements in place at the time of the initial grant of Liens under Section 4.01(dd), (gg) or (jj), as applicable, by such Note Party required the grant of such Lien in after-acquired Collateral;

 

(bb)       Liens with respect to property or assets of the Parent Issuer or any Restricted Subsidiary securing obligations in an aggregate principal amount outstanding at any time not to exceed the greater of $91,875,000 and 43.75% of Trailing Four Quarter Consolidated EBITDA, in each case determined as of the date of incurrence, which Liens may be subject to the Parity Lien Intercreditor Agreement, First Lien/Second Lien Intercreditor Agreement, ABL Intercreditor Agreement or another junior lien subordination and intercreditor agreement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent), as applicable; provided that the aggregate outstanding principal amount of obligations that are secured by any Applicable Liens pursuant to this Section 4.01(bb) may not exceed $25,000,000 at any time and any such Lien on the ABL Priority Collateral shall be junior to the Liens on the ABL Priority Collateral securing the ABL Obligations;

 

(cc)        (i) Liens securing obligations in respect of Indebtedness permitted under Section 4.03(z)(i); provided that, in the case of this clause (i), such Liens do not encumber any assets other than Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender) and are subject to the ABL Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and (ii) Liens securing obligations in respect of Indebtedness permitted under Section 4.03(z)(ii); provided that, in the case of this clause (ii), (A) any such Lien on the Term Loan Priority Collateral shall be junior to the Liens on the Term Loan Priority Collateral securing the Secured Obligations and any such Lien on the ABL Priority Collateral shall be senior to the Liens on the ABL Priority Collateral securing the Secured Obligations and (B) such Liens do not encumber any assets other than Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender) and are subject to the ABL Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent);

 

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(dd)       Liens on the Collateral securing any Parity Lien Notes Refinancing Debt or Junior Lien Notes Refinancing Debt incurred pursuant to Section 4.03(t);

 

(ee)        Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

 

(ff)         deposits of cash with the owner or lessor of premises leased and operated by the Parent Issuer or any Subsidiary to secure the performance of the Parent Issuer’s or such Subsidiary’s obligations under the terms of the lease for such premises;

 

(gg)       (i) Liens securing obligations in respect of Indebtedness permitted under Section 4.03(p)(i); provided that, in the case of this clause (i), such Liens are subject to the Parity Lien Intercreditor Agreement, the ABL Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent) and (ii) Liens securing obligations in respect of Indebtedness permitted under Section 4.03(p)(ii); provided that, in the case of this clause (ii), such Liens are subject to the Junior Lien Intercreditor Agreement, the ABL Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent);

 

(hh)       Liens on the Securitization Assets arising in connection with a Qualified Securitization Financing;

 

(ii)          Liens encumbering the Equity Interests of an Unrestricted Subsidiary of the Parent Issuer or a Restricted Subsidiary;

 

(jj)          Liens securing obligations in respect of Indebtedness; provided that:

 

(i)          after giving Pro Forma Effect (or, in the case of Indebtedness under Designated Revolving Commitments, on the date such Designated Revolving Commitments are established after giving Pro Forma Effect to the incurrence of the entire committed amount of Indebtedness thereunder, in which case such committed amount under such Designated Revolving Commitments may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (jj)), the Senior Secured Net Leverage Ratio shall be no greater than 5.75 to 1.00,

 

(ii)         the obligations in respect thereof shall not have any borrower, issuer or guarantor that is a Subsidiary (other than a Note Party);

 

(iii)        the obligations in respect thereof shall not be secured by any Lien on any asset of the Parent Issuer or any Restricted Subsidiary other than any asset constituting Collateral;

 

(iv)        such obligations shall be secured only by Liens on the Collateral and such Liens shall rank on a pari passu or junior basis in respect of the Collateral relative to the Liens securing the Secured Obligations (and subject to the ABL Intercreditor Agreement, the First Lien/Second Lien Intercreditor Agreement and, as applicable, the Parity Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Parent Issuer and the Controlling Parties (or, if after the Sell-Down Date, the Collateral Agent), as applicable);

 

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(v)         to the extent incurred by the Note Parties, as of the date of the incurrence of such Liens, the obligations in respect thereof (x) shall not have a final scheduled maturity date earlier than the Maturity Date and (y) shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereto); provided that any such obligations consisting of a customary bridge facility so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies this criteria may have a final scheduled maturity date earlier than the Maturity Date and a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereof); and

 

(vi)        no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence; provided that with respect to any Indebtedness which is used to finance any Permitted Acquisition or Investment, including any Limited Condition Transaction, such condition shall be limited to no Event of Default pursuant to Section 6.01(a) or (f) (with respect to the Parent Issuer only);

 

provided that no Second Lien Indebtedness may be secured pursuant to this Section 4.01(jj) unless the All-In Yield applicable to such Second Lien Indebtedness is not greater than the applicable All-In Yield with respect to the Notes (as amended through the date of such calculation) plus 50 basis points per annum unless the Applicable Margin (together with, as provided in the proviso below, the Adjusted LIBOR Rate Floor) with respect to the Notes is increased so as to cause the then applicable All-In Yield with respect to the Notes to equal the All-In Yield then applicable to such Second Lien Indebtedness minus 50 basis points; provided that any increase to the All-In Yield of the Notes due to the application or imposition of a “eurocurrency floor” or “base rate floor” or similar floor on such Second Lien Indebtedness shall be effected, at the Parent Issuer’s option, (i) solely through an increase in the Adjusted LIBOR Rate Floor applicable to the Notes, (ii) through an increase in the Applicable Margin or (iii) any combination of (i) and (ii) above; provided further that the Parent Issuer and the Trustee shall be permitted to amend this Indenture and the Notes without the consent of the Holders to give effect to any increase in the Applicable Margin or the Adjusted LIBOR Rate Floor pursuant to the immediately preceding proviso;

 

(kk)      in the case of any non-wholly-owned Restricted Subsidiary or any joint venture, any put and call arrangements or restrictions on disposition related to its Equity Interests set forth in its organizational documents or any related joint venture or similar agreement;

 

(ll)        [Reserved];

 

(mm)    subject to compliance with Section 3.20, Liens existing on the Closing Date and set forth on Schedule 3.20;

 

(nn)      other Liens or imperfections on property existing on the Closing Date which are not material in amount or do not materially detract from the value of or materially impair the existing use of the property affected by such Lien or imperfection; and

 

(oo)      Liens on property of any Foreign Subsidiary arising mandatorily under the Laws of the jurisdiction of organization of such Foreign Subsidiary.

 

The expansion of Liens by virtue of accrual of interest, the accretion of accreted value, the payment of interest or dividends in the form of additional Indebtedness, amortization of OID and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an incurrence of Liens for purposes of this Section 4.01.

 

For purposes of determining compliance with this Section 4.01, (A) a Lien need not be incurred solely by references to one category of permitted Liens described in Section 4.01(a) through (oo) above, but is permitted to incurred in part under any combination thereof and of any other available exemption and (B) in the event that Lien (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens described in Section 4.01(a) through (oo) above, the Parent Issuer will, in its sole discretion, be entitled to divide, classify or reclassify, in whole or in part, any such Lien (or any portion thereof) among one or more of such categories or clauses in any manner at any time.

 

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Section 4.02         [Reserved].

 

Section 4.03         Indebtedness, Disqualified Equity Interests and Preferred Stock.

 

The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Indebtedness or issue any Disqualified Equity Interest, or issue any Preferred Stock of a Restricted Subsidiary, except:

 

(a)          Indebtedness under the Notes Documents;

 

(b)          Indebtedness outstanding on the Closing Date and listed in Schedule 4.03(b); provided that all such Indebtedness of any Note Party owed to any Non-Note Party shall be subject to the Intercompany Note;

 

(c)          Guarantees by the Parent Issuer and any Restricted Subsidiary in respect of Indebtedness of the Parent Issuer or any Restricted Subsidiary otherwise permitted hereunder; provided that (A) no Guarantee by any Restricted Subsidiary of any Indebtedness constituting ABL Obligations, First Lien Secured Obligations, Second Lien Secured Obligations, Specified Junior Financing Obligations or Notes Refinancing Debt shall be permitted unless such guaranteeing party shall have also provided a Note Guarantee of the Secured Obligations on substantially the terms set forth herein, (B) if the Indebtedness being guaranteed is subordinated to the Secured Obligations, such Guarantee shall be subordinated to the Note Guarantee of the Secured Obligations on terms at least as favorable (as reasonably determined by the Parent Issuer) to the Secured Parties as those contained in the subordination of such Indebtedness, (C) any Guarantee by a Note Party of Indebtedness of a Non-Note Party shall either constitute a Permitted Investment or a Restricted Investment permitted by Section 4.06 and (D) any Guarantee by a Non-Note Party of any Permitted Ratio Debt or Indebtedness under Section 4.03(g) (or any Refinancing Indebtedness in respect of any of the foregoing) shall only be permitted if such Guarantee meets the requirements of the first proviso in the definition of “Permitted Ratio Debt” or the first proviso in Section 4.03(g), as the case may be;

 

(d)         Indebtedness of the Parent Issuer or any Restricted Subsidiary owing to any Note Party or any other Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Note Party which is substantially contemporaneously transferred to a Note Party or any Restricted Subsidiary of a Note Party) to the extent constituting a Permitted Investment or a Restricted Investment permitted by Section 4.06, provided that all such Indebtedness of any Note Party owed to any Non-Note Party shall be subject to the Intercompany Note;

 

(e)          (i) Indebtedness (including Capitalized Leases) and Disqualified Equity Interests incurred or issued by the Parent Issuer or any Restricted Subsidiary and Preferred Stock incurred or issued by any Restricted Subsidiary, to finance the purchase, lease, replacement or improvement of property (real or personal), equipment or fixed or capital assets, in an aggregate principal amount, together with all other Indebtedness, Preferred Stock and/or Disqualified Equity Interests incurred or issued and outstanding under this clause (e)(i) at such time, not to exceed the greater of (x) $52,500,000 and (y) 25.0% of Trailing Four Quarter Consolidated EBITDA, in each case, determined at the time of incurrence (and any Refinancing Indebtedness thereof); plus, in the event of any extension, replacement, refinancing, renewal or defeasance of such Indebtedness with Refinancing Indebtedness pursuant to this clause (e)(i), Disqualified Equity Interests or Preferred Stock, the amount of Refinancing Indebtedness incurred pursuant to this clause (e)(i) to finance (I) any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Equity Interests or Preferred Stock and any defeasance costs and (II) any fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Disqualified Equity Interests or Preferred Stock or the extension, replacement, refinancing, renewal or defeasance of such Indebtedness, Disqualified Equity Interests or Preferred Stock; so long as (other than in the case of any such Refinancing Indebtedness) such Indebtedness, Disqualified Equity Interests or Preferred Stock is incurred or issued no later than 270 days after such purchase, lease, replacement or improvement and (ii) Attributable Indebtedness arising out of sale-leaseback transactions permitted by Section 4.05(f) and any Refinancing Indebtedness of such Attributable Indebtedness;

 

(f)          Indebtedness in respect of Swap Contracts designed to hedge against the Parent Issuer’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes and Guarantees thereof;

 

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(g)          Indebtedness or Disqualified Equity Interests of the Parent Issuer or Indebtedness, Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary (including any Person that becomes a Restricted Subsidiary in connection with a Permitted Acquisition or other permitted Investment) incurred, issued or assumed in connection with any Permitted Acquisition or other permitted Investment; provided that after giving Pro Forma Effect to such Permitted Acquisition and the Indebtedness, Disqualified Equity Interests or Preferred Stock incurred, issued, guaranteed or assumed pursuant to this Section 4.03(g), any of (at the Parent Issuer’s election):

 

(i)          the Fixed Charge Coverage Ratio of the Parent Issuer is equal to or greater than the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition; or

 

(ii)         the Parent Issuer would be permitted to incur at least $1.00 of Permitted Ratio Debt pursuant to clause (ii) of the definition of “Permitted Ratio Debt”;

 

provided that the aggregate principal amount of Indebtedness, Disqualified Equity Interests and Preferred Stock the primary obligations under which are outstanding in reliance on this Section 4.03(g) or Section 4.03(w) (to the extent initially incurred, issued or assumed under this Section 4.03(g)) shall not exceed, together with the aggregate principal amount of any Indebtedness, Disqualified Equity Interests and Preferred Stock of Non-Note Parties the primary obligations under which are outstanding in reliance on Section 4.03(s) or Section 4.03(w) (to the extent initially incurred, issued or assumed under Section 4.03(s)), the greater of (x) $43,750,000 and (y) 18.75% of Trailing Four Quarter Consolidated EBITDA, in each case determined at the time of assumption, guarantee, incurrence or issuance; provided further that any Liens securing any Indebtedness, Disqualified Equity Interests or Preferred Stock incurred, guaranteed, issued or assumed pursuant to this Section 4.03(g) shall be permitted to be incurred pursuant to Sections 4.01(v), 4.01(w), 4.01(bb) or 4.01(jj); provided further that any Indebtedness incurred (and not, for the avoidance of doubt, assumed) by any Note Party pursuant to this Section 4.03(g), as of the relevant closing date, shall not have a final scheduled maturity date earlier than the Maturity Date and shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Notes (prior to any extension thereof) (in each case other than any such Indebtedness, Disqualified Equity Interests or Preferred Stock consisting of a customary bridge facility so long as the long-term Indebtedness into which any such customary bridge facility is to be converted satisfies such criteria);

 

(h)          Indebtedness representing deferred compensation or similar arrangements to employees and independent contractors of the Parent Issuer or any Restricted Subsidiary, in each case, incurred in the ordinary course of business;

 

(i)           Indebtedness consisting of promissory notes issued or incurred by the Parent Issuer or any Restricted Subsidiary to future, present or former employees, directors, officers, members of management, independent contractors, advisors, service providers and consultants of the Parent Issuer or any Restricted Subsidiary, or, in each case, to their respective Controlled Investment Affiliates or Immediate Family Members, in each case to finance the purchase or redemption of Equity Interests or other equity-based awards of the Parent Issuer permitted by Section 4.06(b)(iv);

 

(j)           Indebtedness (i) incurred by the Parent Issuer or any Restricted Subsidiary in any transaction or arrangement not prohibited hereunder constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments and obligations in respect of transaction tax benefits and (ii) consisting of obligations of any Issuer or any Restricted Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions, Permitted Acquisitions or any other Investment permitted hereunder;

 

(k)          [Reserved];

 

(l)           ABL Banking Services Obligations (as defined in the ABL Intercreditor Agreement), other Indebtedness in respect of Cash Management Services in the ordinary course of business and any Guarantees thereof;

 

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(m)          (i) from and after the Sell-Down Date, unsecured Indebtedness or Disqualified Equity Interests of the Parent Issuer and unsecured Indebtedness, Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount up to 100% of the net cash proceeds received by the Parent Issuer since immediately after the Closing Date from the issue or sale of Equity Interests of the Parent Issuer or cash contributed to the capital of the Parent Issuer (in each case, other than proceeds of Disqualified Equity Interests, sales of Equity Interests to the Parent Issuer or any Subsidiary, proceeds which have been designated as Excluded Contributions, or proceeds which have been designated as an ABL Cure Amount) as determined in accordance with Section 4.06(a)(iii)(B) and (a)(iii)(C) to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments pursuant to Section 4.06(a)(iii) or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) or (3) of the definition thereof); and (ii) Indebtedness or Disqualified Equity Interests of the Parent Issuer and Indebtedness, Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness, Disqualified Equity Interests and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this Section 4.03(m)(ii), does not exceed the greater of (x) $131,250,000 and (y) 62.5% of Trailing Four Quarter Consolidated EBITDA (in each case, determined on the date of such incurrence) (and any Refinancing Indebtedness thereof); plus, in the event of any extension, replacement, refinancing, renewal or defeasance of such Indebtedness, Disqualified Equity Interests or Preferred Stock with Refinancing Indebtedness pursuant to this clause (m)(ii), the amount of Refinancing Indebtedness incurred pursuant to this clause (m)(ii) to finance (I) any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Equity Interests or Preferred Stock and (II) any defeasance costs and any fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Disqualified Equity Interests or Preferred Stock or the extension, replacement, refinancing, renewal or defeasance of such Indebtedness, Disqualified Equity Interests or Preferred Stock;

 

(n)          Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business or consistent with industry practice;

 

(o)          obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Parent Issuer or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with industry practice;

 

(p)          (i) (A) Additional Second Lien Debt in an aggregate principal amount not to exceed the Maximum Additional Second Lien/Junior Debt Amount and (B) the Guarantees by the Guarantors of such Indebtedness described in clauses (i)(A) and (ii) (A) Additional Junior Debt in an aggregate principal amount not to exceed the Maximum Additional Second Lien/Junior Debt Amount and (B) the Guarantees by the Guarantors of such Indebtedness described in clauses (ii)(A);

 

(q)          to the extent a joint venture constitutes a Restricted Subsidiary, Indebtedness incurred by or Disqualified Equity Interests or Preferred Stock issued by such Restricted Subsidiary which, when aggregated with the principal amount of all other Indebtedness incurred pursuant to this Section 4.03(q) and then outstanding for all such Persons taken together, does not exceed the greater of $39,375,000 and 18.75% of Trailing Four Quarter Consolidated EBITDA determined at the time of incurrence;

 

(r)          (i) Indebtedness supported by a Letter of Credit (as defined in and issued under the ABL Credit Agreement), in a principal amount not in excess of the stated amount of such Letter of Credit (as defined in the ABL Credit Agreement) and (ii) letters of credit in an aggregate face amount at any time outstanding not to exceed $6,250,000 consisting of (A) letters of credit issued in currencies not available under the ABL Credit Agreement or (B) documentary or commercial letters of credit not issued under the ABL Credit Agreement;

 

(s)          Permitted Ratio Debt;

 

(t)           Notes Refinancing Debt of the Note Parties;

 

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(u)          Indebtedness incurred by or Disqualified Equity Interests or Preferred Stock issued by a Non-Note Party which, when aggregated with the principal amount of all other Indebtedness incurred or Disqualified Equity Interests or Preferred Stock issued pursuant to this clause (u) and then outstanding, does not exceed the greater of $65,625,000 and 31.25% of Trailing Four Quarter Consolidated EBITDA (in each case determined at the date of incurrence or issuance);

 

(v)          Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (except for Standard Securitization Undertakings and Limited Originator Recourse) to the Parent Issuer or any of the Restricted Subsidiaries; provided that the aggregate principal amount of Indebtedness at any time outstanding in connection therewith shall not exceed $46,875,000;

 

(w)         the incurrence or issuance by the Parent Issuer of Indebtedness or Disqualified Equity Interests or the incurrence or issuance by a Restricted Subsidiary of Indebtedness, Disqualified Equity Interests or Preferred Stock which serves to refund, refinance, extend, replace, renew or defease any Indebtedness (including any Designated Revolving Commitments) incurred or Disqualified Equity Interests or Preferred Stock issued as permitted under Sections 4.03(b), (g), (m)(i), (p), (q), (s), (t), this clause (w) and (z); provided that any such Indebtedness, Disqualified Equity Interests or Preferred Stock constitutes Refinancing Indebtedness;

 

(x)           Indebtedness incurred by the Parent Issuer or any Restricted Subsidiary in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;

 

(y)          shares of Preferred Stock of a Restricted Subsidiary issued to the Parent Issuer or a Restricted Subsidiary (to the extent constituting a Permitted Investment or a Restricted Investment permitted by Section 4.06); provided that any subsequent issuance or transfer of any Equity Interests or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Parent Issuer or another of the Restricted Subsidiaries or any pledge of such Equity Interests constituting a Lien permitted hereunder) shall be deemed, in each case, to be an issuance of such shares of Preferred Stock (to the extent such Preferred Stock is then outstanding) not permitted by this clause (y);

 

(z)           (i) (A) Indebtedness of the Issuers in respect of the Initial Term Loans and the Guarantees by the Guarantors of such Indebtedness and (B) Additional First Lien Debt in an aggregate principal amount not to exceed the Maximum Additional First Lien Debt Amount and the Guarantees by the Guarantors of such Indebtedness and (ii) Indebtedness incurred under the ABL Credit Agreement, (including guarantee obligations in respect thereof) so long as (I) any Liens securing such Indebtedness are subject to the ABL Intercreditor Agreement and (II) the aggregate principal amount of such Indebtedness does not exceed the aggregate principal amount permitted to be incurred under the ABL Credit Agreement (as in effect on the date hereof and whether or not the ABL Credit Agreement is in effect on the relevant date of determination);

 

(aa)        [Reserved];

 

(bb)       to the extent constituting Indebtedness, customer deposits and advance payments (including progress payments) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;

 

(cc)        Indebtedness incurred by the Parent Issuer or a Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s length commercial terms;

 

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(dd)       Indebtedness incurred by an Issuer as a result of the exchange of Term B Loans assigned to such Issuer pursuant to Section 10.07(k) of the First Lien Credit Agreement (or comparable exchange of other First Lien Secured Obligations under any First Lien Loan Document or any Second Lien Secured Obligations under any Second Lien Debt Document), as long as such Indebtedness would be a refinancing permitted hereunder of such Term B Loans (or such other First Lien Secured Obligations or Second Lien Secured Obligations) and so long as any Liens securing such Indebtedness do not have a greater priority than the Liens securing the Indebtedness being refinanced; and

 

(ee)        all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (dd) above.

 

For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness, Disqualified Equity Interests or Preferred Stock (or any portion thereof) at any time, whether at the time of incurrence or issuance or upon the application of all or a portion of the proceeds thereof or subsequently, meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Equity Interests or Preferred Stock described in Sections 4.03(a) through (dd) above, the Parent Issuer, in its sole discretion, will classify and may subsequently reclassify such item of Indebtedness, Disqualified Equity Interests or Preferred Stock (or any portion thereof) in any one or more of the types of Indebtedness, Disqualified Equity Interests or Preferred Stock described in Sections 4.03(a) through (dd) and will only be required to include the amount and type of such Indebtedness, Disqualified Equity Interests or Preferred Stock in such of the above clauses as determined by the Parent Issuer at such time; provided that (x) all Indebtedness under the Notes Documents will be deemed to have been incurred in reliance on the exception in clause (a) above, (y) all Indebtedness under the ABL Credit Agreement shall be deemed to have been incurred in reliance on the exception in clause (z)(ii) above and (z) all Indebtedness under the First Lien Credit Agreement shall be deemed to have been incurred in reliance on the exception in clause (z)(i) above (with all Indebtedness under the First Lien Credit Agreement incurred on the Closing Date being deemed to have been incurred in reliance on the exception in clause (z)(i)(A) above). Subject to the preceding sentence, the Parent Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 4.03(a) through (dd).

 

For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness or issuance of Disqualified Equity Interests or Preferred Stock, the Dollar-equivalent principal amount of Indebtedness, Disqualified Equity Interests or Preferred Stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or first incurred (whichever yields the lower Dollar equivalent), in the case of revolving credit debt; provided that if such Indebtedness is incurred, or Disqualified Equity Interests or Preferred Stock is issued, to extend, replace, refund, refinance, renew or defease other Indebtedness, Disqualified Equity Interests or Preferred Stock, as applicable, denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount or liquidation preference, as applicable, of such refinancing Indebtedness, Disqualified Equity Interests or Preferred Stock does not exceed the principal amount or liquidation preference, as applicable, of such Indebtedness, Disqualified Equity Interests or Preferred Stock, as applicable, being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including tender premiums) and other costs and expenses (including OID, upfront fees or similar fees) incurred in connection with such refinancing.

 

The accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of OID, and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Equity Interests or Preferred Stock, as the case may be, of the same class, accretion or amortization of OID or liquidation preference and increases in the amount of Indebtedness, Disqualified Equity Interests or Preferred Stock outstanding solely as a result of fluctuations in the exchange rate of currencies, will, in each case, not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Equity Interests or Preferred Stock for purposes of this Section 4.03. The principal amount of any Indebtedness incurred or Disqualified Equity Interests issued to refinance other Indebtedness, if incurred in a different currency from the Indebtedness or Disqualified Equity Interests, as applicable, being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness or Disqualified Equity Interests in denominated that is in effect on the date of such refinancing. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on the consolidated balance sheet of the Parent Issuer dated such date prepared in accordance with GAAP.

 

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Notwithstanding anything to the contrary in this Indenture, (x) no investments made by any Note Party in any Non-Note Party in the form of intercompany loans shall be evidenced by a promissory note unless such promissory note, to the extent required to be pledged thereunder, is pledged to the Collateral Agent in accordance with the terms of the Security Agreement and (y) any investments in the form of intercompany loans constituting indebtedness of any Note Party owed to any Non-Note Party shall be unsecured and subordinated to the Secured Obligations on terms consistent with the subordination provisions of the Intercompany Note in each case, other than indebtedness owed by, or to, a Broker-Dealer Regulated Subsidiary.

 

Section 4.04         Fundamental Changes

 

The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:

 

(a)          any Restricted Subsidiary may merge, amalgamate or consolidate with (i) an Issuer (including a merger, the purpose of which is to reorganize such Issuer into a new jurisdiction in the United States, any state thereof or the District of Columbia); provided that such Issuer shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Note Party is merging, amalgamating or consolidating with a Restricted Subsidiary, a Note Party shall be the continuing or surviving Person unless the Investment made in connection with such Restricted Subsidiary that is a Note Party merging, amalgamating or consolidating with a Non-Note Party shall otherwise be a Restricted Payment permitted by Section 4.06 (other than Section 4.06(b)(xviii)) or a Permitted Investment;

 

(b)          any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Issuer determines in good faith that such action is in the best interests of the Issuers and the Restricted Subsidiaries and is not materially disadvantageous to the Holders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);

 

(c)          any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to an Issuer or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Note Party, then (i) the transferee must be a Note Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 4.06 (other than Section 4.06(b)(xviii)) or a Permitted Investment;

 

(d)          so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Issuer may merge, dissolve, liquidate or consolidate with any other Person; provided that (i) the Parent Issuer shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Issuer or is a Person into which the Parent Issuer has been liquidated or dissolved (any such Person, the “Successor Parent Issuer”), (A) the Successor Parent Issuer shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, (B) the Successor Parent Issuer shall expressly assume all the obligations of the Parent Issuer under this Indenture and the other Notes Documents to which the Parent Issuer is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee), (C) each Guarantor, unless it is the other party to such merger, dissolution, liquidation or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Parent Issuer’s obligations under the Notes Documents, (D) each Guarantor, unless it is the other party to such merger, dissolution, liquidation or consolidation, shall have reaffirmed that its obligations under the Security Agreement and other applicable Collateral Documents shall apply to the Successor Parent Issuer's obligations under the Notes Documents, (E) [reserved], and (F) the Parent Issuer shall have delivered to the Trustee an Officer’s Certificate stating that such merger or consolidation and such supplement to this Indenture or any Collateral Document comply with this Indenture and customary legal opinions consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date, the Trustee); provided further that if the foregoing are satisfied, the Successor Parent Issuer will succeed to, and be substituted for, the Parent Issuer under this Indenture;

 

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(e)          [reserved];

 

(f)           so long as no Event of Default has occurred and is continuing or would result therefrom (solely in the case of a merger, amalgamation or consolidation involving a Note Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 4.06 (other than Section 4.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each other Restricted Subsidiary, shall have complied with the requirements of Section 3.13;

 

(g)          the Note Parties and their Subsidiaries may consummate the Merger and the related transactions contemplated by the Merger Agreement (and documents related thereto) and any Permitted Reorganization; and

 

(h)          so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 4.05 (other than Section 4.05(e)) may be consummated.

 

Notwithstanding the above, in the case of any merger, amalgamation or consolidation where the continuing or surviving Person is a Note Party or any liquidation into a Note Party, in each case, in accordance with this Section 4.04, any security interests granted to the Collateral Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by Sections 3.13 and 3.15.

 

Section 4.05          Dispositions.

 

The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Disposition, except:

 

(a)          (x) Dispositions of obsolete, damaged, worn out, used or surplus property, whether now owned or hereafter acquired, in the ordinary course of business, (y) Dispositions of property no longer used or useful in the conduct of the business of the Parent Issuer or any Restricted Subsidiary and (z) Dispositions to landlords of improvements made to leased real property pursuant to customary terms of leases entered into in the ordinary course of business;

 

(b)          Dispositions of (i) inventory, goods held for sale in the ordinary course of business and (ii) immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business, including but not limited to Dispositions of medical devices or other medical products pursuant to a voluntary or mandatory recall thereof or of assets in connection with the consolidation of billing centers;

 

(c)          Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

 

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(d)          Dispositions of property to the Parent Issuer or any Restricted Subsidiary; provided that if the transferor of such property is a Note Party (i) the transferee thereof must be a Note Party, (ii) such Disposition is for cash and shall be for no less than the fair market value of such property at the time of such Disposition (or any promissory note or other non-cash consideration received in respect thereof must be a Restricted Payment permitted by Section 4.06 (other than Section 4.06(b)(xviii))) or a Permitted Investment or (iii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 4.06 (other than Section 4.06(b)(xviii)) or a Permitted Investment;

 

(e)          Dispositions that otherwise constitute a Permitted Investment, are permitted by Section 4.04 (other than Section 4.04(h)) or otherwise constitute a Restricted Payment permitted by Section 4.06 (other than Section 4.06(b)(xviii)) and Liens permitted by Section 4.01 (other than Section 4.01(l)(ii));

 

(f)           Dispositions of property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date exceeds $50,000,000, such excess shall be (x) used to repay or prepay First Lien Indebtedness or ABL Indebtedness or (y) reinvested, in each case of clauses (x) and (y), in accordance with the definition of “Net Proceeds”;

 

(g)          Dispositions of cash and Cash Equivalents;

 

(h)          (i) leases, subleases, licenses or sublicenses (including agreements under which the Parent Issuer or any Restricted Subsidiary has granted rights to end users to access and use the Parent Issuer’s or any Restricted Subsidiary’s products, technologies or services), in each case in the ordinary course of business and which do not materially interfere with the business of the Parent Issuer and the Restricted Subsidiaries, taken as a whole, and (ii) the abandonment of intellectual property rights (A) in the ordinary course of business or which in the reasonable good faith determination of the Parent Issuer are not material to the conduct of the business of the Parent Issuer and the Restricted Subsidiaries taken as a whole or (B) that are no longer economically practicable or commercially reasonable to maintain;

 

(i)           transfers of property subject to Casualty Events;

 

(j)           Dispositions of property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and be continuing or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $10,625,000, the Parent Issuer or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (free and clear of all Liens at the time received (other than nonconsensual Liens permitted by Section 4.01 and Liens permitted by Section 4.01(a), clause (iii) of Section 4.01(k), Section 4.01(m), clauses (i) and (ii) of Section 4.01(r), Section 4.01(v), Section 4.01(bb), Section 4.01(cc), Section 4.01(dd), Section 4.01(gg), Section 4.01(ii), Section 4.01(jj) and Section 4.01(ll) and in each case, any permitted modifications, replacements, renewals or extensions of such Liens pursuant to Section 4.01(aa))); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Issuer’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Secured Obligations, that (i) are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Issuer or any of its Restricted Subsidiaries) and, in the case of clause (i), for which the Parent Issuer and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Issuer or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) in connection with the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Issuer or any of its Restricted Subsidiaries), to the extent that the Parent Issuer and each of its Restricted Subsidiaries are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Issuer or the applicable Restricted Subsidiary having an aggregate fair market value, taken together with all other non-cash consideration received pursuant to this clause (D) (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $91,875,000 and 43.75% of Trailing Four Quarter Consolidated EBITDA as determined at the time of such applicable Dispositions (net of any such non-cash consideration subsequently converted into cash and Cash Equivalents);

 

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(k)          to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Issuer or any of the Restricted Subsidiaries that is not in contravention of Section 4.07;

 

(l)           Dispositions or discounts, without recourse of accounts receivable or notes receivable in connection with the collection or compromise thereof in the ordinary course of business or the conversion of accounts receivable to notes receivable in the ordinary course of business;

 

(m)          Dispositions of ABL Priority Collateral not otherwise permitted by this Section 4.05 to the extent the net proceeds thereof are applied to repay or cash collateralize the ABL Obligations;

 

(n)          any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Parent Issuer and the Subsidiaries as a whole, as determined in good faith by the Parent Issuer;

 

(o)          any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 

(p)          Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 

(q)          the unwinding of any Swap Contract or any Cash Management Services permitted under Section 4.03(l);

 

(r)           the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;

 

(s)          any Disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;

 

(t)           Dispositions by any Note Party of any wholly-owned Restricted Subsidiary of the type described in clauses (d) and (e) of the definition of “Excluded Subsidiary” to the extent consisting of contributions or other Dispositions of Equity Interests in other wholly-owned Restricted Subsidiaries of the type described in clauses (d) and (e) of the definition of “Excluded Subsidiary” to such wholly-owned Restricted Subsidiary;

 

(u)          Dispositions (i) of non-core assets acquired in connection with Permitted Acquisitions or any other acquisition or Investment permitted under this Indenture; provided that the aggregate amount of such sales shall not exceed 31.25% of the fair market value of the acquired entity or business, (ii) made to satisfy the Parent Issuer’s or any Restricted Subsidiary’s obligations under any non-compete agreement or (iii) made to obtain the approval of any anti-trust authority;

 

(v)          Dispositions set forth on Schedule 4.05;

 

(w)          any issuance of Equity Interests in any Restricted Subsidiary to any officer, director, consultant, advisor, service provider or employee of the Issuers or any Restricted Subsidiary in respect of services provided to the Issuers or a Restricted Subsidiary in the ordinary course of business approved by the Board of Directors of the Parent Issuer;

 

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(x)          cancellation of Indebtedness owing to the Parent Issuer or any Restricted Subsidiary from members of management of the Parent Issuer, any of the Parent Issuer’s direct or indirect parent companies or any of the Parent Issuer’s Restricted Subsidiaries in connection with the repurchase or redemption of Equity Interests of any of the Parent Issuer’s direct or indirect parent companies;

 

(y)          Dispositions of assets not constituting Collateral;

 

(z)          any Issuer and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost-sharing agreements with any Issuer or any Subsidiary and settle any crossing payments in connection therewith or (ii) surrender, terminate or waive contractual rights and settle or waive contractual or litigation claims; and

 

(aa)         Dispositions in an amount not to exceed the greater of $6,562,500 and 3.125% of Trailing Four Quarter Consolidated EBITDA in the aggregate in any fiscal year;

 

provided that any Disposition of any property pursuant to this Section 4.05 (except pursuant to Sections 4.05(a), (d), (e), (h), (i), (l), (p), (q), (r), (s), (v), (w), (x), (z) and (aa) and except for (x) Dispositions from the Parent Issuer or a Guarantor to the Parent Issuer or a Guarantor or (y) Dispositions from any wholly-owned Non-Note Party to any other wholly-owned Non-Note Party) shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 4.05 to any Person other than the Parent Issuer or any of its Restricted Subsidiaries, such Collateral shall be sold free and clear of the Liens created by the Notes Documents, and, if requested by the Collateral Agent or any Controlling Party, upon the certification by the Parent Issuer that such Disposition is not prohibited by this Indenture, the Collateral Agent shall be authorized, without recourse, representation, warranty (express or implied) or liability, to take any reasonable actions at the sole cost and expense of the Parent Issuer in order to effect the foregoing.

 

Section 4.06         Restricted Payments.

 

(a)          The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (w) declare or pay any dividend or make any payment or distribution on account of the Parent Issuer’s or any of its Restricted Subsidiaries’ Equity Interests (in each case, solely in such Person’s capacity as holder of such Equity Interests), including any dividend, payment or distribution payable in connection with any merger, amalgamation or consolidation other than (A) dividends or distributions by the Parent Issuer payable solely in Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a wholly-owned Subsidiary, the Parent Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in accordance with its Equity Interests in such class or series of securities, (x) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Parent Issuer, including in connection with any merger, amalgamation or consolidation, in each case held by Persons other than the Parent Issuer or a Restricted Subsidiary, (y) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Financing, other than such Indebtedness permitted under Sections 4.03(d) and (z) make any Restricted Investment (all such payments and other actions set forth in clauses (w) through (z) above being collectively referred to as “Restricted Payments”), unless, at the time of and immediately after giving effect to such Restricted Payment:

 

(i)           in the case of any Restricted Payment described in clauses (w), (x) or (y) above utilizing amounts described in clause (iii) below, (1) no Event of Default shall have occurred and be continuing at the time of declaration of such Restricted Payments or would occur as a consequence thereof and (2) solely with respect to the utilization of subclause (iii)(A), the Total Net Leverage Ratio (calculated on a Pro Forma Basis) of the Parent Issuer for the immediately preceding Test Period is less than or equal to 6.00 to 1.00;

 

(ii)          in the case of any Restricted Payment described in clause (z) above utilizing amounts described in clause (iii) below, no Event of Default shall have occurred and be continuing at the time of declaration thereof;

 

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(iii)         such Restricted Payment, together with the aggregate amount of all Restricted Payments (including the fair market value of any non-cash amount) made by the Parent Issuer and the Restricted Subsidiaries after the Closing Date permitted by Section 4.06(b)(i) (to the extent at the applicable date of declaration or notice, the dividend or other distribution or redemption payment is to be made in reliance on this clause (iii) or Section 4.06(b)(vi)(C)) or Section 4.06(b)(vi)(C), but excluding all other Restricted Payments permitted by Section 4.06(b) (and for the avoidance of doubt, all other Permitted Investments)), is less than the sum of (without duplication):

 

(A)         50% of Consolidated Net Income of the Parent Issuer for the period (taken as one accounting period and including the predecessor) beginning the first day of the fiscal quarter in which the Closing Date occurs to the end of the most recently ended Test Period preceding such Restricted Payment for which financial statements have been delivered to the Trustee and the Holders pursuant to Section 3.01(a) or 3.01(b), as applicable, or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit (provided that in no event shall this clause (A) be less than zero); plus

 

(B)         100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Parent Issuer since the Closing Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Equity Interests or Preferred Stock pursuant to Section 4.03(m)(i) or have been designated as an ABL Cure Amount) from the issue or sale of:

 

(I) (a) Equity Interests of the Parent Issuer, including Treasury Capital Stock (as defined below), but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of:

 

(x)          Equity Interests to any future, present or former employees, directors, officers, members of management, independent contractors, advisors, service providers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer or any of the Parent Issuer’s Subsidiaries after the Closing Date to the extent such amounts have been applied to Restricted Payments made in accordance with Section 4.06(b)(iv); and

 

(y)          Designated Preferred Stock; and

 

(b)          to the extent such net proceeds or other property are actually contributed to a Parent Issuer, Equity Interests of any direct or indirect parent company of such Parent Issuer (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such company or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with Section 4.06(b)(iv)); or

 

(II)        debt securities of the Parent Issuer, that have been converted into or exchanged for Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer;

 

provided that this clause (B) shall not include the proceeds from (W) Refunding Capital Stock (as defined below) applied in accordance with Section 4.06(b)(ii), (X) Equity Interests or convertible debt securities of the Parent Issuer sold to a Restricted Subsidiary, (Y) Disqualified Equity Interests or debt securities that have been converted or exchanged into Disqualified Equity Interests or (Z) Excluded Contributions; provided further that the making of any Restricted Investment in a Non-Note Party pursuant to this Section 4.06(a)(iii) shall not be subject to compliance with Section 4.06(a)(ii); plus

 

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(C)         100% of the aggregate amount of cash and the fair market value of marketable securities or other property contributed to the capital of the Parent Issuer following the Closing Date but other than (V) to the extent designated as an ABL Cure Amount, (W) net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Equity Interests or Preferred Stock pursuant to Section 4.03(m)(i), (X) by a Restricted Subsidiary, (Y) any Excluded Contributions and (Z) net cash proceeds that constitute net cash proceeds from the sale of Designated Preferred Stock; plus

 

(D)         100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by means of:

 

(1)         the sale or other disposition (other than to the Parent Issuer or any of its Restricted Subsidiaries) of, or other Returns (other than Returns that reduce Investments pursuant to the last paragraph of the definition thereof) on Investments from, Restricted Investments made by the Parent Issuer or any of its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Parent Issuer or a Restricted Subsidiary (other than by the Parent Issuer or a Restricted Subsidiary) and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Parent Issuer or a Restricted Subsidiary, in each case after the Closing Date (in each case, other than Restricted Investments made by the Parent Issuer or any of its Restricted Subsidiaries pursuant to Section 4.06(b)(x) or 4.06(b)(xvii)); or

 

(2)         the sale (other than to the Parent Issuer or any of its Restricted Subsidiaries) of the stock or any assets of an Unrestricted Subsidiary (or any joint venture (other than any Restricted Subsidiary) or other minority Investment or a distribution or a dividend from an Unrestricted Subsidiary, any joint venture (other than any Restricted Subsidiary) or other minority Investment (other than to the extent the Investment in such Unrestricted Subsidiary was made by the Parent Issuer or a Restricted Subsidiary pursuant to Section 4.06(b)(x), 4.06(b)(xvii) or 4.06(b)(xxiii) or to the extent such Investment constituted a Permitted Investment, but including such cash or fair market value to the extent exceeding the amount of such Permitted Investment), in each case, after the Closing Date; plus

 

(E)          in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Parent Issuer or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Parent Issuer or a Restricted Subsidiary after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets transferred) at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation, consolidation or transfer of assets, other than to the extent the Investment in such Unrestricted Subsidiary was made by the Parent Issuer or a Restricted Subsidiary pursuant to Section 4.06(b)(x), 4.06(b)(xvii) or 4.06(b)(xxiii) or to the extent such Investment constituted a Permitted Investment, but, to the extent exceeding the amount of such Permitted Investment, including such excess amounts of cash or fair market value; provided that, in the case of this Section 4.06(a)(iii)(E), if the fair market value of any such marketable securities or other property (other than cash) contributed or received, or such Investment, as applicable to be included in this clause (E), shall exceed $31,250,000 in any redesignation, transaction or series or related transactions, such fair market value shall be determined by the Board of Directors of the Parent Issuer at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary whose resolution with respect thereto will be delivered to the Trustee; plus

 

(F)          Declined Proceeds less (x) any Declined Proceeds the proceeds of which are required to be used to effect the repurchase, redemption or other acquisition or retirement for value of any Indebtedness of the Parent Issuer or any of its Restricted Subsidiaries pursuant to provisions similar to those described in Sections 3.24 and 3.25 and (y) any Declined Proceeds applied to make a payment pursuant to Section 4.06(b)(xiii); plus

 

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(G)         an amount equal to $50,000,000 (with the amount of each Restricted Investment being measured at the time made and without giving effect to subsequent changes in value).

 

(b)          The provisions of Section 4.06(a) will not prohibit:

 

(i)           the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with this Indenture;

 

(ii)          (a) the redemption, repurchase, retirement or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”), or any Junior Financing of the Parent Issuer or any of its Restricted Subsidiaries, in exchange for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests of the Parent Issuer to the extent contributed to the Parent Issuer (in each case, other than any Disqualified Equity Interests) (“Refunding Capital Stock”), (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Parent Issuer or to an employee stock ownership plan or any trust established by the Parent Issuer or any of its Restricted Subsidiaries) of Refunding Capital Stock, and (c) if, immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under Section 4.06(b)(vi)(A) or (B), the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement under Section 4.06(b)(vi)(A) or (B);

 

(iii)         the principal payment on, defeasance, redemption, repurchase, exchange or other acquisition or retirement of (a) Junior Financing of the Parent Issuer or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Parent Issuer or a Guarantor or Disqualified Equity Interests of the Parent Issuer or a Guarantor, (b) Disqualified Equity Interests of the Parent Issuer or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Disqualified Equity Interests or Subordinated Indebtedness of the Parent Issuer or a Guarantor, (c) Disqualified Equity Interests of a Restricted Subsidiary that is not a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Disqualified Equity Interests of a Restricted Subsidiary that is not a Guarantor that, in each case of clauses (a) through (c), is Refinancing Indebtedness incurred or issued, as applicable, in compliance with Section 4.03 and (d) any Junior Financing or Disqualified Equity Interests which constitutes Acquired Indebtedness (to the extent such Acquired Indebtedness was not incurred in contemplation of such principal payment on, defeasance, redemption, repurchase, exchange or other acquisition or retirement);

 

(iv)         a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer or any direct or indirect parent company of the Parent Issuer held by any future, present or former employee, director, officer, member of management, independent contractor, advisor, service provider or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer, any of its Subsidiaries or any of its direct or indirect parent companies upon the death, disability, retirement or termination of employment of any such Person or pursuant to any shareholder, employee, manager or director equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or co-investor or shareholder agreement (including, for the avoidance of doubt, to pay any principal and interest payable on any notes issued by the Parent Issuer or any direct or indirect parent company of the Parent Issuer in connection with any such repurchase, retirement or other acquisition) including any arrangement including Equity Interests rolled over by management of the Parent Issuer in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this Section 4.06(b)(iv) does not exceed $18,750,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $37,500,000 in any calendar year; provided further that such amount in any calendar year may be increased by an amount not to exceed:

 

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(A)        the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer and, to the extent contributed to the Parent Issuer, the cash proceeds from the sale of Equity Interests of any direct or indirect parent company of the Parent Issuer, in each case to any future, present or former employees, directors, officers, members of management, independent contractors, advisors, service providers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of Section 4.06(a)(iii) or designated an Excluded Contribution; plus

 

(B)         the cash proceeds of key man life insurance policies received by the Parent Issuer or any of its Restricted Subsidiaries (or by any direct or indirect parent company to the extent contributed to the Parent Issuer) after the Closing Date; less

 

(C)         the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this Section 4.06(b)(iv);

 

(v)         the declaration and payment of scheduled cash dividends or scheduled cash distributions to holders of any class or series of Disqualified Equity Interests of the Parent Issuer or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary issued in accordance with Section 4.03(g) or (s), in each case to the extent such dividends are included in the definition of “Fixed Charges”;

 

(vi)        (A) the declaration and payment of cash dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) issued by the Parent Issuer after the Closing Date, (B) the declaration and payment of cash dividends or distributions to any direct or indirect parent company of the Parent Issuer, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) issued by such parent company after the Closing Date; provided that the amount of dividends paid pursuant to this Section 4.06(b)(vi)(B) shall not exceed the aggregate amount of cash actually contributed to the Parent Issuer from the sale of such Designated Preferred Stock; or (C) the declaration and payment of cash dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable and payable thereon pursuant to Section 4.06(b)(ii); provided, in the case of each of clauses (A), (B) and (C) of this clause (b)(vi), that for the most recently ended Test Period preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after giving effect to such issuance or declaration, (I) the Total Net Leverage Ratio (calculated on a Pro Forma Basis) for the immediately preceding Test Period is less than or equal to 6.00 to 1.00 or (II) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) for the immediately preceding Test Period is at least 2.00 to 1.00, and satisfaction of such tests shall be evidenced by a certificate from a Financial Officer of the Parent Issuer demonstrating such satisfaction calculated in reasonable detail;

 

(vii)       payments made or expected to be made by the Parent Issuer or any of its Restricted Subsidiaries in respect of withholding or similar taxes payable by or with respect to any future, present or former employee, director, officer, member of management, independent contractor, advisor, service provider or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer or any of its Restricted Subsidiaries and any repurchases of Equity Interests deemed to occur upon, in each case, exercise, vesting, or settlement, as applicable, of stock options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options, warrants or similar rights or required withholding or similar taxes;

 

(viii)      Restricted Payments in an aggregate amount per annum not to exceed an amount equal to 4.00% of Market Capitalization;

 

(ix)         Restricted Payments that are made with Excluded Contributions;

 

(x)          Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (x) (in the case of Restricted Investments, at the time outstanding) not to exceed the greater of (I) $81,250,000 and (II) 37.5% of Trailing Four Quarter Consolidated EBITDA (in the case of Restricted Investments made pursuant to this clause (x), the amount of such Restricted Investment being measured at the time such Restricted Investment is made and without giving effect to subsequent changes in value, but subject to adjustment as set forth in the definition of “Investment”);

 

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(xi)        distributions or payments of Securitization Fees;

 

(xii)       any cash payments made after the Closing Date in respect of performance-based or time-vested restricted stock units (in each case that are existing and either vested or unvested) as of the Closing Date in an aggregate amount of up to $18,750,000;

 

(xiii)      solely to the extent funded with Declined Proceeds, the repurchase, redemption or other acquisition or retirement for value of any Junior Financing;

 

(xiv)      [reserved];

 

(xv)       Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in respect of working capital adjustments or purchase price adjustments pursuant to the Merger Agreement, any Permitted Acquisition or other permitted Investments, (iii) in order to satisfy indemnity and other similar obligations under the Merger Agreement, any Permitted Acquisition or other permitted Investments and (iv) to holders of Equity Interests of the Parent Issuer (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions, and Restricted Payments consisting of a Permitted Reorganization;

 

(xvi)      cash payments or loans, advances, dividends or distributions to any direct or indirect shareholder of the Parent Issuer to make payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Parent Issuer or any of its Restricted Subsidiaries or any direct or indirect parent company of the Parent Issuer;

 

(xvii)     in addition to the foregoing Restricted Payments, the Parent Issuer may make additional Restricted Payments so long as immediately after giving effect to such Restricted Payment and the application of proceeds therefrom, (x) the Total Net Leverage Ratio for the Test Period immediately preceding such Restricted Payment is less than or equal to 5.00 to 1.00 (calculated on a Pro Forma Basis) and (y) no Event of Default exists or would immediately result therefrom;

 

(xviii)    to the extent constituting Restricted Payments, the Parent Issuer and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 4.01, 4.03 (other than Section 4.03(d)), 4.04 (other than Section 4.04(a), 4.04(c)(ii) or (f)), 4.05 (other than Section 4.05(d)(ii) or (e)) or 4.08 (except transactions described in clauses (a), (b), (f), (g), (j), (n), (q), (s), (w), (y) and (z) of such Section);

 

(xix)       payments and distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Parent Issuer and the Restricted Subsidiaries taken as a whole that complies with the terms of this Indenture or any other transaction that complies with the terms of this Indenture;

 

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(xx)        (A) the payment of dividends, other distributions and other amounts by the Parent Issuer to, or the making of loans to, any direct or indirect parent of the Parent Issuer in the amount required for such parent to, if applicable, pay amounts equal to amounts required for any direct or indirect parent of the Parent Issuer, if applicable, to pay interest and/or principal (including AHYDO “catch-up payments”) on Indebtedness the proceeds of which have been permanently contributed to the Parent Issuer or any of its Restricted Subsidiaries and that has been guaranteed by, or is otherwise considered Indebtedness of, the Parent Issuer or any of its Restricted Subsidiaries incurred in accordance with Section 4.03 (other than if such guarantee or Indebtedness constitutes Junior Financing and such payment would be in violation of the applicable intercreditor and/or subordination agreement); provided that the proceeds contributed to the Parent Issuer or such Restricted Subsidiary shall not increase amounts available for Restricted Payments pursuant to Section 4.06(b)(iv) or 4.06(a)(iii) and shall not be designated an Excluded Contribution; provided further that (x) the aggregate amount of such dividends, distributions or other amounts shall not exceed the amount of cash actually contributed to the Parent Issuer for the incurrence of such Indebtedness and (y) any Restricted Payment made pursuant to this clause (xx) the proceeds of which are used to make payments in respect of Indebtedness which payments would constitute an interest expense determined in accordance with GAAP if such Indebtedness was Indebtedness of the Parent Issuer, shall be deemed to be an interest expense of the Parent Issuer for all purposes of this Indenture; and (B) the payment of dividends, other distributions and other amounts by the Parent Issuer to, or the making of loans to, any direct or indirect parent of the Parent Issuer in the amount required for such parent to, if applicable, make any AHYDO Payment on intercompany Indebtedness among parent companies of the Parent Issuer; provided that such AHYDO Payment shall not be made prior to the end of the first accrual period ending after the fifth anniversary of the issue date of such intercompany Indebtedness;

 

(xxi)       repurchases of Equity Interests in the Parent Issuer or any Restricted Subsidiary of the Parent Issuer deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

 

(xxii)      [reserved]; and

 

(xxiii)     Investments in joint ventures, other similar agreements, partnerships, minority investments or Unrestricted Subsidiaries having an aggregate fair market value taken together with all other Investments made pursuant to this clause (xxiii) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities (until such proceeds are converted to cash or Cash Equivalents), not to exceed the greater of (a) $52,500,000 and (b) 25.0% of Trailing Four Quarter Consolidated EBITDA at the time of such Investment (with the amount of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided that if any Investment made pursuant to this clause (xxiii) in Equity Interests of a Person that subsequently becomes a Note Party, such Investment shall thereafter be deemed permitted under clause (1) of the definition of “Permitted Investment” (without giving effect to the proviso thereto) and shall not be included as having been made pursuant to this clause (xxiii);

 

provided that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xvii) and (b)(xx)(A), no Event of Default shall have occurred and be continuing or would occur as a consequence thereof.

 

(c)         For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Parent Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in the penultimate sentence of the definition of “Investments.” Such designation will be permitted only if a Restricted Payment in such amount would be permitted at such time, pursuant to this Section 4.06 or if an Investment in such amount would be permitted at such time pursuant to the definition of “Permitted Investments,” and if such Subsidiary otherwise is permitted to be so designated pursuant to Section 3.16.

 

(d)         For the avoidance of doubt, this Section 4.06 shall not restrict the making of any “AHYDO catch-up payment” with respect to, and required by the terms of, any Indebtedness of the Parent Issuer or any Restricted Subsidiary permitted to be incurred under Section 4.03 hereof.

 

(e)         For the avoidance of doubt, the cancellation of Indebtedness owing to the Parent Issuer or any of its Restricted Subsidiaries from any future, present or former employees, directors, officers, independent contractors, members of management or consultants of the Parent Issuer (or their respective Controlled Investment Affiliates or Immediate Family Members), any direct or indirect parent company of the Parent Issuer or any of the Parent Issuer’s Restricted Subsidiaries in connection with a repurchase or redemption of Equity Interests of the Parent Issuer or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this Section 4.06 or any other provision of this Indenture.

 

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For purposes of determining compliance with this Section 4.06, in the event that a proposed Restricted Payment or Investment (or any portion thereof) at any time, whether at the time of declaration or payment, purchase, redemption, defeasance or other acquisition or retirement, or at the time of the making thereof, or subsequently at a later time, meets the criteria of more than one of the categories described in Section 4.06(b)(i) through (xxiii) or is entitled to be made pursuant to Section 4.06(a) and/or one or more of the categories described in the definition of “Permitted Investment”, the Parent Issuer, in its sole discretion, will be entitled to classify and may subsequently reclassify such item of (or any portion thereof) (based on circumstances existing on the date of such reclassification) among such clauses in Section 4.06(b)(i) through (xxiii),  Section 4.06(a) and/or one or more of the categories contained in the definition of “Permitted Investments”, and will only be required to include the amount and type of such Restricted Payment or Investment in such of the above clauses as determined by the Parent Issuer at such time.  The Parent Issuer will be entitled to divide and classify a Restricted Payment or Investment in more than one of the types described in Section 4.06(b)(i) through (xxiii),  Section 4.06(a) and/or one or more of the categories contained in the definition of “Permitted Investments”.

 

Section 4.07        Change in Nature of Business. The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by the Parent Issuer and the Restricted Subsidiaries on the Closing Date or any business or any other activities reasonably related, complementary, synergistic, similar, incidental or ancillary thereto (including related, complementary, synergistic, similar, incidental or ancillary technologies) or reasonable extensions, developments or expansions thereof.

 

Section 4.08         Transactions with Affiliates.

 

The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction of any kind with any Affiliate of the Parent Issuer, whether or not in the ordinary course of business, involving aggregate payments or consideration, in any transaction or series of related transactions, in excess of $10,625,000, other than:

 

(a)          transactions among the Parent Issuer or the Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;

 

(b)          transactions on terms (taken as a whole) substantially as favorable to the Parent Issuer or such Restricted Subsidiary as would be obtainable by the Parent Issuer or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate;

 

(c)          the Transactions and the payment of fees and expenses (including the Transaction Expenses) related to the Transactions and transactions constituting any Permitted Reorganization;

 

(d)          the issuance of Equity Interests or equity-based awards to any officer, director, employee, independent contractor, advisor, service provider or consultant of the Parent Issuer or any Subsidiary or any direct or indirect parent of the Parent Issuer, including, without limitation, in connection with the Transactions;

 

(e)          the payment of management, monitoring, oversight, consulting, advisory and similar fees pursuant to a Sponsor Management Agreement or other arrangement with Walgreens Co., the Sponsor or management companies associated with the Sponsor or their advisors in a maximum amount for all such agreements and arrangements not to exceed 2.50% of Trailing Four Quarter Consolidated EBITDA of the Parent Issuer in any fiscal year, and transaction fees to the foregoing Persons not to exceed in the aggregate 1.25% of the applicable gross transaction value and indemnities and other expenses pursuant to a Sponsor Management Agreement or other arrangement with the foregoing Persons (including any transaction fee payable in connection with the Transactions), plus any unpaid management, monitoring, transaction fees, indemnities and expenses accrued in any prior year to the extent such fee or expense is otherwise permitted to be paid pursuant to this clause (e) in such prior year;

 

(f)           Restricted Payments permitted under Section 4.06, Permitted Investments and Permitted Acquisitions (other than by reference to this Section 4.08 or any clause in this Section 4.08);

 

(g)          transactions by the Parent Issuer and any Restricted Subsidiary permitted under an express provision (including any exceptions thereto) of this Article VII (other than by reference to this Section 4.08 or any clause in this Section 4.08);

 

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(h)        (i) employment, consulting and severance arrangements between the Parent Issuer and the Restricted Subsidiaries (or any direct or indirect parent of the Parent Issuer) and their respective future, present or former officers, employees, independent contractors, advisor, service provider and/or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members), in each case, in the ordinary course of business and (ii) transactions pursuant to any shareholder, employee or director equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription, co-invest agreement or shareholder agreement, including any arrangement including Equity Interests rolled over or otherwise re-invested by management of the Parent Issuer or Omega Parent in connection with the Transactions;

 

(i)          the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of or for the benefit of any future, present or former directors, officers, member of management, independent contractors, employees, advisors, service providers and consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Issuer and its Restricted Subsidiaries (or any direct or indirect parent of the Parent Issuer), in each case, in the ordinary course of business to the extent attributable to the ownership or operation of the Parent Issuer and its Restricted Subsidiaries;

 

(j)          transactions pursuant to agreements, instruments or arrangements in existence on the Closing Date and set forth on Schedule 4.08 or any amendment thereto or replacement thereof to the extent such an amendment or replacement is not adverse to the Holders in any material respect as compared to the applicable agreement, instrument or arrangement in effect on the Closing Date;

 

(k)         payments by the Parent Issuer and any of its Restricted Subsidiaries to the Sponsor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the majority of the members of the Board of Directors of the Parent Issuer or a majority of the disinterested members of such Board of Directors in good faith;

 

(l)          payments by the Parent Issuer or any of its Subsidiaries pursuant to any tax sharing agreements with the Parent Issuer to the extent attributable to the ownership or operation of the Parent Issuer and its Subsidiaries, but only to the extent permitted by Section 4.06;

 

(m)         the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer to any Permitted Holder or to any former, current or future director, manager, officer, employee, independent contractor, advisor, service provider or consultant (or any Immediate Family Members or Affiliates of any of the foregoing) of the Parent Issuer, any of its Subsidiaries or any direct or indirect parent thereof;

 

(n)         transactions with customers, clients, joint venture partners, independent contractors, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Parent Issuer or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Parent Issuer, or are on terms at least as favorable (as determined by the Parent Issuer) as might reasonably have been obtained at such time from an unaffiliated party;

 

(o)         transactions pursuant to that certain Letter Agreement re: Administrative Services, dated as of March 11, 2019, between HC Group Holdings I, LLC and Option Care Enterprises, Inc., or any amendment thereto or replacement thereof to the extent such an amendment or replacement is not adverse to the Holders in any material respect as compared to the letter agreement in effect on the Closing Date;

 

(p)         the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to stockholders of the Parent Issuer or any direct or indirect parent thereof pursuant to the stockholders agreement or the registration rights agreement entered into on or after the Closing Date in connection therewith or similar equity holder’s agreements or limited liability company agreements;

 

(q)         transactions in which the Parent Issuer or any of the Restricted Subsidiaries, as the case may be, deliver to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Parent Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (b) of this Section 4.08;

 

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(r)          the licensing of trademarks, copyrights or other IP Rights in the ordinary course of business and the non-exclusive licensing (or sublicensing) of trademarks, copyrights, or other IP Rights;

 

(s)         the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Parent Issuer or any of its Subsidiaries or any direct or indirect parent thereof or any contribution to the capital of the Parent Issuer or any of its Restricted Subsidiaries to the extent otherwise permitted by this Indenture and to the extent such issuance or transfer would not give rise to a Change of Control;

 

(t)          (i) investments by the Permitted Holders in securities of the Parent Issuer or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by the Permitted Holders in connection therewith) so long as (A) the investment is being offered generally to other non-affiliated investors on the same or more favorable terms and (B) the investment constitutes less than 10% of the proposed or outstanding issue amount of such class of securities (provided that any investments in debt securities by any Debt Fund Affiliates shall not be subject to the limitation in this clause (B)), and (ii) payments to the Permitted Holders in respect of securities or loans of the Parent Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Parent Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;

 

(u)         subleases of leased real property by and between the Parent Issuer or any Restricted Subsidiary and Walgreens Co. and any of its Subsidiaries;

 

(v)         transactions among the Parent Issuer and the Restricted Subsidiaries, undertaken in good faith (as certified by a responsible financial or accounting officer of the Parent Issuer in an Officer’s Certificate) for the purposes of improving the consolidated tax efficiency of the Parent Issuer and its Subsidiaries and not for the purpose of circumventing any provision of this Indenture so long as (x) no Event of Default has occurred and is continuing or would result from such transactions and (y) the Parent Issuer provides to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) evidence reasonably acceptable to the Controlling Parties or such Designated First Lien Representative, as applicable, that the granting, perfection, validity and priority of the security interest of the Secured Parties in the Collateral (prior to giving effect to the transactions), taken as a whole, is not impaired in any material respect by such transactions and all actions required to maintain said perfected status have been or will promptly be taken;

 

(w)        payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by the Parent Issuer and the Restricted Subsidiaries in such joint venture) in the ordinary course of business or consistent with past practice or industry practice (including, without limitation, any cash management activities related thereto) to the extent otherwise constituting a Permitted Investment or Restricted Payment permitted under Section 4.06;

 

(x)          any Disposition of Securitization Assets or related assets, Investments permitted pursuant to clause (14) of the definition of “Permitted Investments”, Standard Securitization Undertakings and Limited Originator Recourse, in each case in connection with any Qualified Securitization Financing or any related transaction effected in order to consummate a financing contemplated by a Qualified Securitization Financing;

 

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(y)         transactions between the Parent Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Parent Issuer or any direct or indirect parent of the Parent Issuer; provided, however, that such director abstains from voting as a director of the Parent Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;

 

(z)          payments or loans (or cancellations of loan repayment obligations) to future, present and former independent contractors, employees, advisors, service providers or consultants of the Parent Issuer, any of its direct or indirect parent companies or any Restricted Subsidiary that are approved by the Board of Directors of senior management of the Parent Issuer in good faith and that are otherwise permitted by this Indenture; and

 

(aa)        Affiliate repurchases of the Loans or Commitments (as defined in the First Lien Credit Agreement) to the extent permitted by Section 10.07 of the First Lien Credit Agreement and Affiliate repurchases of other First Lien Secured Obligations, Secured Obligations and obligations in respect of any Junior Financing, and, in each case, the holding of such loans or commitments and the payments and other transactions contemplated herein in respect thereof.

 

Section 4.09         Burdensome Agreements. The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Contractual Obligation (other than this Indenture or any other Notes Document) that limits the ability of:

 

(a)          any Non-Note Party to make Restricted Payments to any Note Party, or

 

(b)          any Note Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Secured Obligations or under the Notes Documents; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which:

 

(i)          (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 4.09) are listed in Schedule 4.09 and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing does not expand the scope of such Contractual Obligation;

 

(ii)         are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary, so long as such Contractual Obligations were not entered into in anticipation of such Person becoming a Restricted Subsidiary;

 

(iii)        comprise restrictions pursuant to Indebtedness of a Non-Note Party which is permitted by Section 4.03 and which does not apply to any Note Party;

 

(iv)        are customary restrictions that arise in connection with (x) any Lien permitted by Sections 4.01(k), (l), (p), (q), (r)(i), (r)(ii), (s) and (ee) and relate to the property subject to such Lien or (y) any Disposition permitted by Section 4.04 or 4.05 and relate solely to the assets or Person subject to such Disposition;

 

(v)         are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures constituting Permitted Investments or otherwise permitted under Section 4.06 and applicable solely to such joint venture;

 

(vi)        are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 4.03 but solely to the extent any negative pledge relates to the property financed by such Indebtedness and the proceeds and products thereof;

 

(vii)       are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the property interest, rights or the assets subject thereto;

 

(viii)      comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Sections 4.03(a), (e) (other than Disqualified Equity Interests or Preferred Stock), (g) (other than Disqualified Equity Interests or Preferred Stock) and (n) to the extent that such restrictions apply only to the property or assets securing such Indebtedness;

 

(ix)        are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Parent Issuer or any of its Restricted Subsidiaries;

 

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(x)          are customary provisions restricting assignment of any agreement; provided that if such agreement is not entered into in the ordinary course of business, the granting, perfection, validity and priority of the security interests of the Secured Parties is not impaired in any material respect by such restriction;

 

(xi)         are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

 

(xii)        arise in connection with cash or other deposits permitted under Section 4.01 or the definition of “Permitted Investments”, and limited to such cash or deposits;

 

(xiii)       comprise restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted under Section 4.03 that are, taken as a whole, in the good faith judgment of the Parent Issuer, no more restrictive with respect to the Parent Issuer or any Restricted Subsidiary than customary market terms for Indebtedness of such type (and, in any event, are no more restrictive than the restrictions contained in this Indenture), so long as the Parent Issuer shall have determined in good faith that such restrictions will not affect its obligation or ability to make any payments required hereunder;

 

(xiv)       comprise restrictions imposed by Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing limited to Securitization Assets, in each case to the extent permitted hereunder;

 

(xv)        are restrictions contained in (x) the Second Lien Debt Documents and documents otherwise governing Indebtedness permitted pursuant to Section 4.03(cc), (y) the ABL Financing Documents and documents otherwise governing Indebtedness permitted pursuant to Section 4.03(z)(ii) or (z) any First Lien Loan Document;

 

(xvi)       are restrictions regarding licensing or sublicensing by the Parent Issuer and its Restricted Subsidiaries of intellectual property in the ordinary course of business; and

 

(xvii)      are restrictions on cash earnest money deposits in favor of sellers in connection with acquisitions not prohibited hereunder.

 

Section 4.10         [Reserved]

 

Section 4.11         [Reserved].

 

Section 4.12         [Reserved]

 

Section 4.13         Modifications of Terms of Junior Financing. The Parent Issuer shall not and the Parent Issuer shall not permit any of its Restricted Subsidiaries to, directly or indirectly, amend, modify or change in any manner materially adverse to the interests of the Holders, as determined in good faith by the Parent Issuer, any term or condition of any Junior Financing Documentation in violation of any applicable Intercreditor Agreement or subordination agreement without the consent of the Controlling Parties (or, if after the Sell-Down Date, the Trustee) (in each case, such consent shall not be unreasonably withheld, delayed or conditioned).

 

Section 4.14         Anti-layering. Notwithstanding anything in this Indenture or any other Notes Document to the contrary, the Parent Issuer shall not, and shall not permit any other Issuer or Guarantor to, directly or indirectly, incur any Indebtedness (including Indebtedness acquired or assumed as part of a Permitted Acquisition) that is contractually subordinated or junior in right of payment to any Indebtedness of such Issuer or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or the applicable Guarantor’s Note Guarantee to the extent and in the same manner as such Indebtedness is subordinated in right of payment to other Indebtedness of any Issuer or such Guarantor, as the case may be (it being understood and agreed that Indebtedness shall not be considered contractually subordinated or junior in right of payment solely because it is unsecured or secured by Liens junior in priority to Liens securing other Indebtedness). In addition to the foregoing, notwithstanding anything in this Indenture or any other Notes Document to the contrary, the Issuers shall not, and shall not permit any Guarantor to, directly or indirectly, incur any Indebtedness that is secured and that is, by its express terms, subordinated as to rights to receive, or subject to turnover of, payments or proceeds of collateral to any other Indebtedness of an Issuer or a Guarantor secured in whole or in part by the same collateral (including any “first-loss” or “last-out” tranche under (x) the First Lien Credit Agreement or the ABL Credit Agreement or (y) the documentation governing any other First Lien Secured Obligations or ABL Obligations), unless (1) such Indebtedness ranks pari passu or junior in right of payment with the Notes and (2) the Liens securing such Indebtedness rank pari passu or junior to the Liens securing the Secured Obligations. Notwithstanding anything in this Section 4.14 to the contrary, nothing in this Section 4.14 shall restrict customary waterfall provisions in the First Lien Loan Documents, ABL Financing Documents or documents governing such other Indebtedness that in each case do not establish any “first-loss,” “last-out” or similar tranche.

 

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Section 4.15         Restrictions on Certain Debt Purchases. Neither the Sponsor nor any non-Debt Fund Affiliate thereof shall, nor shall Issuers or any of the Restricted Subsidiaries permit the Sponsor or any non-Debt Fund Affiliate thereof to, acquire or hold, whether acquired in primary or secondary transactions, any First Lien Secured Obligations or ABL Obligations, except (a) in the case of Indebtedness under the First Lien Credit Agreement, as permitted under the terms of the First Lien Credit Agreement (as in effect on the Closing Date), (b) in the case of any other First Lien Secured Obligations, as may be provided in the documentation governing such other First Lien Secured Obligations; provided that the provisions in the documentation governing such other First Lien Secured Obligations are substantially identical to, or less favorable to the Sponsor and its non-Debt Fund Affiliates than, the provisions described in the foregoing clause (a), and (c) in the case of ABL Obligations, as permitted under the terms of the ABL Credit Agreement (as in effect on the Closing Date).

 

ARTICLE V.

 

REDEMPTION OF SECURITIES

 

Section 5.01         Notices and Opinions to Trustee.

 

If the Parent Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 5.07, it must furnish to the Trustee at least 15 days (or such shorter period as may be agreed to by the Trustee) but not more than 60 days before notice of redemption is required to be sent or cause to be sent to Holders pursuant to Section 5.03, an Officer’s Certificate setting forth:

 

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

 

(B)         the date of redemption (the “Redemption Date”);

 

(C)         the principal amount of Notes to be redeemed; and

 

(D)         the redemption price;

 

provided that any Officer’s Certificate pursuant to this Section 5.01 may be furnished more than 60 days prior to a Redemption Date if the Officer’s Certificate is furnished in connection with Article VIII or Article XI.

 

Any optional redemption referenced in such Officer’s Certificate may be canceled by the Parent Issuer at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.

 

Section 5.02         Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed at any time, selection of Notes for redemption shall be made by the Trustee in accordance with the requirements of the principal national securities exchange, if any, on which the Notes are listed (to the extent such listing and the requirements thereof are known to the Trustee) and in accordance with the procedures and requirements of DTC, or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, on a pro rata basis; provided that no Notes of $1.00 or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed.

 

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Section 5.03         Notice of Redemption.

 

(a)          At least 15 days but not more than 60 days before a Redemption Date, the Parent Issuer will send or cause to be sent, by electronic delivery or by first class mail postage prepaid, a notice of redemption to each Holder whose Notes are to be redeemed at the registered address of such Holder or otherwise in accordance with the procedures of the DTC, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles VIII or XI.

 

(b)         The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:

 

(A)         the Redemption Date;

 

(B)         the redemption price;

 

(C)         if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;

 

(D)         the name and address of the Paying Agent;

 

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

 

(F)         that, unless the Parent Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;

 

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

 

(H)         that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and

 

(I)          any conditions to redemption.

 

(c)          If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, unless the Parent Issuer defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.

 

(d)          At the Parent Issuer’s request, the Trustee will give the notice of redemption in the Parent Issuer’s name and at its expense; provided, however, that the Parent Issuer has delivered to the Trustee, at least three Business Days (or such shorter period as may be agreed to by the Trustee) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 5.03, an Officer’s Certificate requesting that the Trustee give such notice, which shall include a form of the notice setting forth the information provided in the preceding paragraphs of this Section 5.03.

 

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(e)          Notice of any redemption of the Notes may, at the Parent Issuer’s discretion, be subject to one or more conditions precedent. If such redemption or purchase is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Parent Issuer’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Parent Issuer in its sole discretion), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Parent Issuer in its sole discretion) by the Redemption Date stated in such notice, or by the Redemption Date as so delayed. In addition, the Parent Issuer may provide in such notice that payment of the redemption price and performance of the Parent Issuer’s obligations with respect to such redemption may be performed by another Person.

 

Section 5.04         Effect of Notice of Redemption. Once notice of redemption is sent in accordance with Section 5.03, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price stated in such notice, as such Redemption Date may be delayed in accordance with Section 5.03(e), unless such redemption is rescinded in accordance with Section 5.03(e).

 

Section 5.05         Deposit of Redemption or Purchase Price. Prior to 12:00 p.m. New York City time on the redemption or purchase date, the Parent Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Parent Issuer any money deposited with the Trustee or the Paying Agent by the Parent Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.

 

If the Parent Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest, if any, will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Parent Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 3.05.

 

Section 5.06         Notes Redeemed or Purchased in Part. Upon surrender of a Note that is redeemed or purchased in part, the Parent Issuer will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the Holder at the expense of the Parent Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $1.00 or integral multiple of $1.00 in excess thereof.

 

Section 5.07         Optional Redemption.

 

(a)          Except pursuant to paragraph (b) of this Section 5.07, the Notes will not be redeemable at the Parent Issuer’s option.

 

(b)          At any time and from time to time from and after the Closing Date, the Parent Issuer may redeem the Notes, upon notice in accordance with Section 5.03, in whole or in part, at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on August 6 of the year indicated below:

 

Year  Percentage 
2019   103%
2020   102%
2021   101%
2022 and thereafter   100%

 

(c)          Unless the Parent 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.

 

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(d)          Any redemption pursuant to this Section 5.07 shall be made pursuant to the provisions of Sections 5.01 through 5.06.

 

Section 5.08         Mandatory Redemption. The Parent Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes; provided, however, that under certain circumstances, the Parent Issuer may be required to offer to purchase Notes under Sections 3.23, 3.24 and 3.25. The Parent Issuer may at any time and from time to time purchase Notes in the open market or otherwise.

 

ARTICLE VI.

 

DEFAULTS AND REMEDIES

 

Section 6.01         Events of Default.

 

Any of the following events referred to in any of clauses (a) through (k) of this Section 6.01 from and after the Closing Date shall constitute an event of default (an “Event of Default”):

 

(a)          Non-Payment. Any Note Party fails to pay (i) when and as required to be paid by this Indenture or any Note, any amount of principal of any Note or (ii) within five (5) Business Days after the same becomes due, any interest on any Note or any other amount payable hereunder or with respect to any other Notes Document; or

 

(b)          Specific Covenants. Any Note Party fails to perform or observe any term, covenant or agreement contained in any of Sections 3.03(a), 3.08(a) (solely with respect to the Parent Issuer) or Article IV; provided that, with respect to any such Event of Default resulting from a failure to promptly provide notice of an Event of Default to the Trustee pursuant to Section 3.03(a), subject to the last proviso of this Section 6.01, the subsequent provision of such notice by the Parent Issuer or any Restricted Subsidiary to the Trustee shall cure the Event of Default resulting from such failure to timely deliver such notice; or

 

(c)          Other Defaults. Any Note Party fails to perform or observe any other covenant or agreement (not specified in Section 3.01(a) or (b) above) contained in any Notes Document on its part to be performed or observed and such failure continues for thirty (30) days after receipt by the Issuers of written notice thereof from the Trustee or the Required Holders; or

 

(d)          Representations and Warranties. Any representation, warranty or certification made or deemed made by any Note Party herein, in any other Notes Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect in any material respect when made or deemed made, and, other than with respect to any incorrect Specified Representation (which shall not be subject to cure or a grace period), such incorrect representation or warranty (if curable as determined by the Parent Issuer in good faith) shall remain incorrect for a period of (i) in the case of any representation, warranty or certification made on the Closing Date (other than any Specified Representation), 90 days and (ii) in the case of any representation, warranty or certification made after the Closing Date, 30 days, in each case after notice thereof from the Trustee or the Required Holders to the Issuers; or

 

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(e)          Cross-Default. Any Issuer or any Restricted Subsidiary (A) fails to make any principal or interest payment beyond the applicable grace period, if any, whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, in respect of any Indebtedness (other than Indebtedness under the Notes Documents) having an aggregate outstanding principal amount of not less than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs (other than, with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts and not as a result of any other default thereunder by the Issuers or any of its Restricted Subsidiaries), the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required and beyond the applicable grace period, if any, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem all of such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(B) shall not apply to (i) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder, (ii) any Indebtedness if (x) the sole remedy of the holder thereof in the event of the non-payment of such Indebtedness or the non-payment or non-performance of obligations related thereto or (y) the sole option is to elect, in each case, to convert such Indebtedness into Qualified Equity Interests and cash in lieu of fractional shares and (iii) in the case of Indebtedness which the holder thereof may elect to convert into Qualified Equity Interests, such Indebtedness from and after the date, if any, on which such conversion has been effected; provided further that any such failure described under clause (A) or (B) is unremedied and is not waived by the holders of such Indebtedness prior to any acceleration pursuant to Section 6.02; provided further, however that any “Event of Default” under and as defined in the ABL Credit Agreement or the First Lien Credit Agreement shall, in each case, not constitute an Event of Default under this clause (e) until the earlier to occur of (x) any failure to make any payment required to be made on the applicable final maturity date under the ABL Credit Agreement or the First Lien Credit Agreement, as applicable and (y) any acceleration of the ABL Obligations or the First Lien Secured Obligations under the ABL Credit Agreement or the First Lien Credit Agreement, as applicable; or

 

(f)           Insolvency Proceedings, Etc. Other than with respect to dissolutions or liquidations permitted hereunder, the Parent Issuer or any Restricted Subsidiary that is a Material Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) consecutive days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or substantially all of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) consecutive days, or an order for relief is entered in any such proceeding; or

 

(g)          [reserved]

 

(h)          Judgments. There is entered against any Issuer or any Restricted Subsidiary that is a Material Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not paid or covered by independent third-party insurance or indemnity as to which the insurer or indemnitor has been notified of such judgment or order and has not denied coverage thereof) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or

 

(i)           Invalidity of Notes Documents. Any material provision of any Notes Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 4.04 or 4.05 or as a result of acts or omissions by the Collateral Agent or any Holder which does not arise from a breach by a Note Party of its obligations under the Notes Documents or as a result of the occurrence of the Termination Date), ceases to be in full force and effect; or any Note Party contests in writing the validity or enforceability of any provision of any Notes Document or the validity or priority of a Lien as required by the Collateral Documents on a material portion of the Collateral; or any Note Party denies in writing that it has any or further liability or obligation under any Notes Document (other than as a result of the occurrence of the Termination Date), or purports in writing to revoke or rescind any Notes Document; provided that none of the foregoing shall apply to any Guarantor which is not a Material Subsidiary; or

 

(j)           Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 3.1(a)(iv) of the Note Purchase Agreement or Section 3.13 or 3.15 of this Indenture shall for any reason (other than pursuant to the terms hereof or thereof including as a result of a transaction not prohibited under this Indenture) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Liens permitted under Section 4.01, (x) except to the extent that any such perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or results from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents (or other pledged collateral actually delivered to it under the Collateral Documents) or to file Uniform Commercial Code continuation statements and (y) except as to Collateral consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage; or

 

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