8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION 

WASHINGTON, D.C. 20549 

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): March 15, 2023

Ritchie Bros. Auctioneers Incorporated

(Exact name of registrant as specified in its charter)

Canada	001-13425	98-0626225
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification Number)

9500 Glenlyon Parkway, Burnaby, British Columbia, Canada V5J0C6

(Address of principal executive offices) (Zip Code)

(778) 331-5500

(Registrant’s telephone number, including area code)

N/A

(Former Name or Former Address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common shares	RBA	New York Stock Exchange
Common Share Purchase Rights	N/A	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01 Entry into a Material Definitive Agreement

On March 15, 2023, Ritchie Bros. Auctioneers Incorporated (“Ritchie Bros.” or the “Company”) announced that Ritchie Bros. Holdings Inc., a Washington corporation and wholly-owned subsidiary of Ritchie Bros. (the “Issuer”), completed its previously announced offering of the following two series of senior notes issued at par:

(1)            $550 million aggregate principal amount of 6.750% senior secured notes due 2028 (the “Secured Notes”), issued under the Indenture, dated as of March 15, 2023 (the “2028 Indenture”), among the Issuer, Ritchie Bros., as guarantor, U.S. Bank Trust Company, National Association (“US Bank”), as trustee (in such capacity, the “Secured Notes Trustee”), and US Bank, as collateral agent; and

(2)            $800 million aggregate principal amount of 7.750% senior notes due 2031 (the “Unsecured Notes” and, together with the Secured Notes, the “Notes”), to be issued under the Indenture, dated as of March 15, 2023 (the “2031 Indenture” and, together with the 2028 Indenture, the “Indentures”), among the Issuer, Ritchie Bros., as guarantor, and US Bank, as trustee (the “Unsecured Notes Trustee”).

Ritchie Bros. intends to use the net proceeds from the offering of the Notes, together with proceeds from its term loan A facility and cash from its balance sheet, to fund the cash portion of the consideration payable in the previously announced merger with IAA, Inc. and its subsidiaries (“IAA” and such transaction, the “Mergers”), refinance IAA’s existing indebtedness, repay or refinance all of Ritchie Bros.’ indebtedness, including Ritchie Bros.’ existing 5.375% Senior Notes due 2025 (the “existing 2025 notes”), pay a one-time, special cash dividend¹ to Ritchie Bros.’ shareholders and pay related fees and expenses. The gross proceeds from the offering, together with certain additional amounts, were placed into escrow accounts pending the consummation of the Mergers. The escrow accounts are governed by: (i) an escrow and security agreement, dated March 15, 2023 (the “Secured Notes Escrow and Security Agreement”), among the Issuer, the Secured Notes Trustee and US Bank, as a “securities intermediary” and escrow agent; and (ii) an escrow and security agreement, dated March 15, 2023 (the “Unsecured Notes Escrow and Security Agreement” and together with the Secured Notes Escrow and Security Agreement, collectively, the “Escrow and Security Agreements”, and each, an “Escrow and Security Agreement”), among the Issuer, the Unsecured Notes Trustee and US Bank, as a “securities intermediary” and escrow agent.

The Notes have been offered and sold only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A of the Securities Act of 1933, as amended (the “Securities Act”), and to non-U.S. persons outside the U.S. in reliance on Regulation S of the Securities Act. The Notes have not been and will not be registered under the Securities Act or any state securities laws and, unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Notes have not been qualified for sale to the public by prospectus under applicable Canadian securities laws and accordingly, any offer and sale of the securities in Canada has been made on a basis which is exempt from the prospectus requirements of such securities laws.

Certain terms and conditions of the 2028 Indenture and the Secured Notes are as follows:

Maturity. The Secured Notes mature on March 15, 2028.

Interest. The Secured Notes accrue interest at a rate of 6.750% per year. Interest on the Secured Notes is payable semi-annually on each March 15 and September 15, commencing September 15, 2023.

Issue Price. The Notes were issued at par.

¹ Special dividend of $1.08 per share would be payable contingent upon closing of the Mergers to Ritchie Bros. shareholders of record as of a pre-closing record date to be determined with consent of the TSX.

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Guarantees. The Secured Notes will initially be guaranteed by the Company, but not by any of the Company’s subsidiaries and will not be guaranteed by IAA or any of its subsidiaries. Upon consummation of the Mergers, the Secured Notes will be, jointly and severally, fully and unconditionally guaranteed, on a senior secured basis, by the Company and each of the Company’s subsidiaries (other than the Issuer) that is a borrower, or guarantees indebtedness, under Ritchie Bros.’ credit agreement dated October 27, 2016 (as amended, amended and restated, supplemented and otherwise modified, the “Credit Agreement”) or certain capital markets indebtedness, including the other series of Notes. IAA and its subsidiaries that become a borrower or guarantor under the Credit Agreement are expected to become guarantors following the consummation of the Mergers.

Priority following the consummation of the Acquisition. Upon the consummation of the Mergers, the Secured Notes and the related guarantees will be: equal in right of payment with all of the Issuer’s and the guarantors’ senior debt (including borrowings under the Credit Agreement), without giving effect to collateral arrangements; senior in right of payment to all of the Issuer’s and the guarantors’ future subordinated debt, if any, without giving effect to the collateral arrangements; and structurally subordinated in right of payment to all liabilities (including trade payables) of the Issuer’s and the guarantors’ subsidiaries that do not guarantee the Secured Notes. In addition, the Secured Notes and related guarantees, respectively, will be pari passu with Ritchie Bros.’ and the guarantors’ obligations that are secured by a first priority lien (subject to certain permitted liens) on the Collateral (as defined in the 2028 Indenture) (including the borrowings under the Credit Agreement) to the extent of the value of the Collateral, and effectively senior to Ritchie Bros.’ and the guarantors’ respective existing and future indebtedness that is unsecured or that is secured by junior liens, including the Unsecured Notes and the existing 2025 notes, in each case to the extent of the value of the Collateral.

Special Mandatory Redemption. If the Mergers are not consummated on or before September 30, 2023 or the merger agreement is terminated prior to such date, the Issuer will be required to redeem all of the outstanding Secured Notes at a redemption price equal to 100% of the original offering price of the Secured Notes, plus accrued and unpaid interest to, but excluding, the date of such mandatory redemption. In such event, the escrowed proceeds will be applied to fund a portion of such redemption price.

Optional Redemption. On or after March 15, 2025, the Issuer may redeem the Secured Notes, in whole or in part, at any time and from time to time at certain fixed redemption prices expressed as percentages of the principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, the Issuer may redeem up to 40% of the aggregate principal amount of the Secured Notes at any time and from time to time before March 15, 2026, with an amount up to the net proceeds of certain equity offerings at a redemption price of 106.750% of the principal amount plus accrued and unpaid interest, if any, to, but excluding, the redemption date. The Issuer may also redeem the Secured Notes, in whole or in part, at any time and from time to time before March 15, 2025, at a redemption price of 100% of the principal amount plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus a “make-whole” premium.

Change of Control. If Ritchie Bros. experiences certain kinds of changes of control following the consummation of the Mergers, the Issuer may be required to repurchase the Secured Notes at a price equal to 101% of the principal amount of the Secured Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase.

Additional Amounts and Tax Redemption. All payments in respect of the Secured Notes and the guarantees will be made without withholding or deduction for any taxes except to the extent required by law. If withholding or deduction is required by law in a relevant tax jurisdiction, subject to certain exceptions, an additional amount will be paid so that the net amount received by a holder or a beneficial holder is no less than the amount that such holder or beneficial holder would have received in the absence of such withholding or deduction, provided that no additional amount will be paid for U.S. withholding taxes imposed, withheld or deducted on any payment on or with respect to the Secured Notes. If certain changes in tax law or treaties (or any regulations or rulings promulgated thereunder) in a relevant tax jurisdiction become effective that would require an additional amount to be paid or certain tax indemnification payments be made with respect to the Secured Notes or the guarantees with respect thereto, Ritchie Bros. may redeem the Secured Notes in whole, but not in part, at any time, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, and all additional amounts, if any.

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Certain Covenants. The 2028 Indenture contains covenants that will, after consummation of the Mergers, limit, among other things, the Company’s and its restricted subsidiaries’ (including the Issuer) ability to: incur additional indebtedness (including guarantees thereof); incur or create liens on their assets securing indebtedness; make certain restricted payments; make certain investments; dispose of certain assets; allow to exist certain restrictions on the ability of the Company’s restricted subsidiaries to pay dividends or make other payments to the Company or the Issuer; engage in certain transactions with affiliates; and consolidate, amalgamate or merge with or into other companies. These covenants are subject to a number of important limitations and exceptions.

Events of Default. The 2028 Indenture contains customary events of default which could, subject to certain conditions, cause the Secured Notes to become immediately due and payable.

Certain terms and conditions of the 2031 Indenture and the Unsecured Notes are as follows:

Maturity. The Unsecured Notes mature on March 15, 2031.

Interest. The Unsecured Notes accrue interest at a rate of 7.750% per year. Interest on the Unsecured Notes is payable semi-annually on each March 15 and September 15, commencing September 15, 2023.

Issue Price. The Unsecured Notes were issued at par.

Guarantees. The Unsecured Notes will initially be guaranteed by the Company, but not by any of the Company’s subsidiaries and will not be guaranteed by IAA or any of its subsidiaries. Upon consummation of the Mergers, the Unsecured Notes will be, jointly and severally, fully and unconditionally guaranteed, on a senior unsecured basis, by the Company and each of the Company’s subsidiaries (other than the Issuer) that is a borrower, or guarantees indebtedness, under the Credit Agreement or certain capital markets indebtedness, including the other series of Notes. IAA and its subsidiaries that become a borrower or guarantor under the Credit Agreement are expected to become guarantors following the consummation of the Mergers.

Priority following the consummation of the Acquisition. Upon the consummation of the Mergers, the Unsecured Notes and the related guarantees will be: equal in right of payment with all of the Issuer’s and the guarantors’ senior debt (including borrowings under the Credit Agreement), without giving effect to collateral arrangements; senior in right of payment to all of the Issuer’s and the guarantors’ future subordinated debt, if any, without giving effect to the collateral arrangements; and structurally subordinated in right of payment to all liabilities (including trade payables) of the Issuer’s and the guarantors’ subsidiaries that do not guarantee the Unsecured Notes. In addition, the Unsecured Notes and related guarantees, respectively, will be effectively subordinated to all of the Company’s, the Issuer’s or the guarantors’ obligations that are secured, including the Secured Notes and the Credit Agreement, in each case, to the extent of the value of the assets securing such indebtedness.

Special Mandatory Redemption. If the Mergers are not consummated on or before September 30, 2023 or the merger agreement is terminated prior to such date, the Issuer will be required to redeem all of the outstanding Unsecured Notes at a redemption price equal to 100% of the original offering price of the Unsecured Notes, plus accrued and unpaid interest to, but excluding, the date of such mandatory redemption. In such event, the escrowed proceeds will be applied to fund a portion of such redemption price.

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Optional Redemption. On or after March 15, 2026, the Issuer may redeem the Unsecured Notes, in whole or in part, at any time and from time to time at certain fixed redemption prices expressed as percentages of the principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, the Issuer may redeem up to 40% of the aggregate principal amount of the Unsecured Notes at any time and from time to time before March 15, 2026, with an amount up to the net proceeds of certain equity offerings at a redemption price of 107.750% of the principal amount plus accrued and unpaid interest, if any, to, but excluding, the redemption date. The Issuer may also redeem the Unsecured Notes, in whole or in part, at any time and from time to time before March 15, 2026, at a redemption price of 100% of the principal amount plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus a “make-whole” premium.

Change of Control. If Ritchie Bros. experiences certain kinds of changes of control following the consummation of the Mergers, the Issuer may be required to repurchase the Unsecured Notes at a price equal to 101% of the principal amount of the Unsecured Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase.

Additional Amounts and Tax Redemption. All payments in respect of the Unsecured Notes and the guarantees will be made without withholding or deduction for any taxes except to the extent required by law. If withholding or deduction is required by law in a relevant tax jurisdiction, subject to certain exceptions, an additional amount will be paid so that the net amount received by a holder or a beneficial holder is no less than the amount that such holder or beneficial holder would have received in the absence of such withholding or deduction, provided that no additional amount will be paid for U.S. withholding taxes imposed, withheld or deducted on any payment on or with respect to the Unsecured Notes. If certain changes in tax law or treaties (or any regulations or rulings promulgated thereunder) in a relevant tax jurisdiction become effective that would require an additional amount to be paid or certain tax indemnification payments be made with respect to the Unsecured Notes or the guarantees with respect thereto, Ritchie Bros. may redeem the Unsecured Notes in whole, but not in part, at any time, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, and all additional amounts, if any.

Certain Covenants. The 2031 Indenture contains covenants that will, after consummation of the Mergers, limit, among other things, the Company’s and its restricted subsidiaries’ (including the Issuer) ability to: incur additional indebtedness (including guarantees thereof); incur or create liens on their assets securing indebtedness; make certain restricted payments; make certain investments; dispose of certain assets; allow to exist certain restrictions on the ability of the Company’s restricted subsidiaries to pay dividends or make other payments to the Company or the Issuer; engage in certain transactions with affiliates; and consolidate, amalgamate or merge with or into other companies. These covenants are subject to a number of important limitations and exceptions.

Events of Default. The 2031 Indenture contains customary events of default which could, subject to certain conditions, cause the Unsecured Notes to become immediately due and payable.

The above descriptions of the Indentures and the Notes are summaries and are qualified in their entirety by the terms of the Indentures and the Notes. Copies of the Indentures (including the forms of Notes), are attached as exhibits 4.1 and 4.2 hereto and incorporated by reference herein.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information set forth in Item 1.01 above with respect to the Indentures and the Notes is hereby incorporated by reference into this Item 2.03, insofar as it relates to the creation of a direct financial obligation.

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Item 7.01 Regulation FD

Copies of the Escrow and Security Agreements are attached as exhibits 99.1 and 99.2 and are incorporated herein by reference. Ritchie Bros. is disclosing under Item 7.01 of this Current Report on Form 8-K the information attached as exhibits 99.1 and 99.2. The information set forth in Item 7.01 of this Current Report on Form 8-K, including the exhibits 99.1 and 99.2 referenced herein, is being furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any of Ritchie Bros.’ filings under the Securities Act, or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Current Report on Form 8-K shall not be deemed an admission as to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.

Item 8.01 Other Events

A copy of the press release announcing the closing of the offering of the Notes is attached as Exhibit 99.3 and is incorporated herein by reference.

Caution Regarding Forward Looking Statements

This current report contains information relating to a proposed business combination transaction between Ritchie Bros. and IAA. This current report contains forward-looking statements and forward-looking information within the meaning of applicable U.S. and Canadian securities legislation (collectively, “forward-looking statements”), including, in particular, Ritchie Bros.’ ability to satisfy the conditions in the merger agreement and consummate the transactions on the anticipated timeline, or at all, the benefits and synergies of the Merger, future opportunities for the combined businesses of Ritchie Bros. and IAA, future financial and operational results, personnel matters and any other statements regarding events or developments that Ritchie Bros. believes or anticipates will or may occur in the future. Forward-looking statements are statements that are not historical facts and are generally, although not always, identified by words such as “expect”, “plan, “anticipate”, “project”, “target”, “potential”, “schedule”, “forecast”, “budget”, “estimate”, “intend” or “believe” and similar expressions or their negative connotations, or statements that events or conditions “will”, “would”, “may”, “could”, “should” or “might” occur. All such forward-looking statements are based on the opinions and estimates of management as of the date such statements are made. Forward-looking statements necessarily involve assumptions, risks and uncertainties, certain of which are beyond Ritchie Bros.’ control, including risks and uncertainties related to: our ability to consummate the Merger and to satisfy the conditions to releasing the proceeds of this offering from escrow; our future strategy, objectives, targets, projections performance; our ability to drive shareholder value; potential growth and market opportunities; potential future mergers and acquisitions, including the proposed acquisition of IAA; our expected indebtedness in connection with the proposed acquisition of IAA; our ability to integrate potential acquisitions, including the Merger; our internet initiatives and the level of participation in our auctions by internet bidders, and the success of our online marketplaces; our ability to grow our businesses, acquire new customers, enhance our sector reach, drive geographic depth and scale our operations; the impact of our new initiatives, services, investments and acquisitions on us and our customers; the severity, magnitude and duration of the COVID-19 pandemic and the direct and indirect impact of such pandemic, as well as responses to the pandemic by the government, business and consumers, on our operations and personnel, commercial activity and demand across our business and our customers’ businesses; the acquisition or disposition of properties; our future capital expenditures and returns on those expenditures; financing available to us from our credit facilities or other sources, our ability to refinance borrowings and the sufficiency of our working capital to meet our financial needs; our ability to add new business and information solutions, including, among others, our ability to maximize and integrate technology to enhance our existing services and support additional value-added service offerings; the supply trend of equipment in the market and the anticipated price environment for late model equipment, as well as the resulting effect on our business and Gross Transaction Value (“GTV”); fluctuations in our quarterly revenues and operating performance resulting from the seasonality of our business; our compliance with all laws, rules, regulations, and requirements that affect our business; effects of various economic, financial, industry and market conditions or policies, including rising interest rates, inflation and the supply and demand for property, equipment or natural resources; the geopolitical situation in Eastern Europe in light of Russia’s invasion of Ukraine; the behavior of equipment pricing; the relative percentage of GTV represented by straight commission or underwritten (guarantee and inventory) contracts, and its impact on revenues and profitability; the effect of any currency exchange and interest rate fluctuations on our results of operations; the grant and satisfaction of equity awards pursuant to our compensation plans; any future declaration and payment of dividends, including the special dividend to be paid to our shareholders in connection with the Mergers, and the tax treatment of any such dividends; our ability to satisfy our present operating requirements and fund future growth through existing working capital, credit facilities and debt; our failure to realize the anticipated benefits of the Merger in the expected time frame or at all; our expectations with respect to the integration and results of operations of IAA and the impact of the Merger and this offering; as well as the risks and uncertainties set forth in Ritchie Bros.’ Annual Report on Form 10-K for the year ended December 31, 2022, which is available on the SEC, SEDAR, and Ritchie Bros.’ websites. The foregoing list is not exhaustive of the factors that may affect Ritchie Bros.’ forward-looking statements. There can be no assurance that forward-looking statements will prove to be accurate, and actual results may differ materially from those expressed in, or implied by, these forward-looking statements. Forward-looking statements are made as of the date of this current report and Ritchie Bros. does not undertake any obligation to update the information contained herein unless required by applicable securities legislation. For the reasons set forth above, you should not place undue reliance on forward-looking statements.

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No Offer or Solicitation

This current report is not intended to and shall not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, or a solicitation of any vote or approval, nor shall there be any offer, solicitation or sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

Important Additional Information and Where to Find It

In connection with the proposed IAA transaction, Ritchie Bros. filed with the SEC and applicable Canadian securities regulatory authorities a registration statement on Form S-4 to register the common shares of Ritchie Bros. to be issued in connection with the proposed IAA transaction on December 14, 2022 (the “Initial Registration Statement”), as amended by Amendment No. 1 to the Initial Registration Statement filed with the SEC and applicable Canadian security regulatory authorities on February 1, 2023 and Amendment No. 2 to the Initial Registration Statement filed with the SEC and applicable Canadian security regulatory authorities on February 9, 2023 (together with the Initial Registration Statement, the “Registration Statement”). The Registration Statement was declared effective by the SEC on February 10, 2023. The Registration Statement includes a joint proxy statement/prospectus which was sent to the shareholders of Ritchie Bros. and stockholders of IAA seeking their approval of their respective transaction-related proposals. Each of Ritchie Bros. and IAA may also file other relevant documents with the SEC and/or applicable Canadian securities regulatory authorities regarding the proposed IAA transaction. This document is not a substitute for the proxy statement/prospectus or Registration Statement or any other document that Ritchie Bros. or IAA may file with the SEC and/or applicable Canadian securities regulatory authorities. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT ON FORM S-4 AND THE RELATED JOINT PROXY STATEMENT/PROSPECTUS, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC AND APPLICABLE CANADIAN SECURITIES REGULATORY AUTHORITIES IN CONNECTION WITH THE PROPOSED IAA TRANSACTION OR INCORPORATED BY REFERENCE IN THE PROXY STATEMENT/PROSPECTUS, CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE, BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT RITCHIE BROS., IAA AND THE PROPOSED IAA TRANSACTION.

Investors and security holders may obtain copies of these documents (when they are available) free of charge through the website maintained by the SEC at www.sec.gov, SEDAR at www.sedar.com or from Ritchie Bros. at its website, investor.ritchiebros.com, or from IAA at its website, investors.iaai.com. Documents filed with the SEC and applicable Canadian securities regulatory authorities by Ritchie Bros. (when they are available) will be available free of charge by accessing Ritchie Bros.’ website at investor.ritchiebros.com under the heading Financials/SEC Filings, or, alternatively, by directing a request by telephone or mail to Ritchie Bros. at 9500 Glenlyon Parkway, Burnaby, BC, V5J 0C6, Canada, and documents filed with the SEC by IAA (when they are available) will be available free of charge by accessing IAA’s website at investors.iaai.com or by contacting IAA’s Investor Relations at investors@iaai.com.

Item 9.01 Financial Statements and Exhibits.

(d)	Exhibits:
4.1	Indenture, dated as of March 15, 2023, among Ritchie Bros. Auctioneers Incorporated, Ritchie Bros. Holdings Inc. and U.S. Bank Trust Company, National Association, as trustee, and U.S. Bank Trust Company, National Association, as collateral agent, relating to Ritchie Bros. Holdings Inc.’s 6.750% Senior Secured Notes due 2028 (includes form of note).
4.2	Indenture, dated as of March 15, 2023, among Ritchie Bros. Auctioneers Incorporated, Ritchie Bros. Holdings Inc. and U.S. Bank Trust Company, National Association, as trustee, relating to Ritchie Bros. Holdings Inc.’s 7.750% Senior Notes due 2031 (includes form of note).
99.1	Escrow and Security Agreement, dated as of March 15, 2023, among Ritchie Bros. Holdings Inc., U.S. Bank Trust Company, National Association, as escrow agent, and U.S. Bank Trust Company, National Association, as trustee, relating to the Issuer’s 6.750% senior secured notes due 2028.
99.2	Escrow and Security Agreement, dated as of March 15, 2023, among Ritchie Bros. Holdings Inc., U.S. Bank Trust Company, National Association, as escrow agent, and U.S. Bank Trust Company, National Association, as trustee, relating to the Issuer’s 7.750% senior notes due 2031.
99.3	Press Release announcing the closing of the Notes Offering, dated March 15, 2023.
104	Cover Page Interactive Data File, formatted in Inline Extensible Business Reporting Language (iXBRL)

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

RITCHIE BROS. AUCTIONEERS INCORPORATED
By:	/s/ Darren Watt
	Darren Watt
	General Counsel & Corporate Secretary

Date: March 15, 2023

EX-4.1

Exhibit 4.1

Execution Version

RITCHIE BROS. HOLDINGS INC.

6.750% SENIOR SECURED NOTES DUE 2028

INDENTURE

Dated as of March 15, 2023

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

Trustee and Notes Collateral Agent

TABLE OF CONTENTS

		Page
Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01	Definitions	1
Section 1.02	Other Definitions	33
Section 1.03	Rules of Construction	34
Article 2 THE NOTES
Section 2.01	Form and Dating	35
Section 2.02	Execution and Authentication	36
Section 2.03	Registrar and Paying Agent	36
Section 2.04	Paying Agent to Hold Money in Trust	37
Section 2.05	Holder Lists	37
Section 2.06	Transfer and Exchange	37
Section 2.07	Replacement Notes	49
Section 2.08	Outstanding Notes	49
Section 2.09	Treasury Notes	49
Section 2.10	Temporary Notes	49
Section 2.11	Cancellation	50
Section 2.12	Defaulted Interest	50
Section 2.13	Issuance of Additional Notes	50
Article 3 REDEMPTION AND PREPAYMENT
Section 3.01	Notices to Trustee	50
Section 3.02	Selection of Notes to Be Redeemed or Purchased	51
Section 3.03	Notice of Redemption	51
Section 3.04	Effect of Notice of Redemption	52
Section 3.05	Deposit of Redemption or Purchase Price	52
Section 3.06	Notes Redeemed or Purchased in Part	53
Section 3.07	Optional Redemption	53
Section 3.08	Mandatory Redemption	55
Section 3.09	Special Mandatory Redemption	55
Article 4 COVENANTS
Section 4.01	Payment of Notes	55
Section 4.02	Maintenance of Office or Agency	56
Section 4.03	Reports to Holders	56
Section 4.04	Compliance Certificate	58
Section 4.05	Taxes	59
Section 4.06	Stay, Extension and Usury Laws	59

		Page
Section 4.07	Restricted Payments	59
Section 4.08	Dividend and Other Payment Restrictions Affecting Guarantors	63
Section 4.09	Incurrence of Additional Indebtedness	65
Section 4.10	Asset Sales	69
Section 4.11	Transactions with Affiliates	72
Section 4.12	Liens	74
Section 4.13	[RESERVED]	75
Section 4.14	Corporate Existence	75
Section 4.15	Offer to Repurchase Upon Change of Control	76
Section 4.16	Additional Amounts	77
Section 4.17	Limited Condition Transactions; Financial Calculations	80
Section 4.18	Additional Subsidiary Note Guarantees	81
Section 4.19	Designation of Restricted and Unrestricted Subsidiaries	81
Section 4.20	Changes in Covenants When Notes Rated Investment Grade	82
Article 5 SUCCESSORS
Section 5.01	Merger, Consolidation and Sale of Assets	83
Section 5.02	Successor Corporation Substituted	86
Article 6 DEFAULTS AND REMEDIES
Section 6.01	Events of Default	87
Section 6.02	Acceleration	89
Section 6.03	Other Remedies	90
Section 6.04	Waiver of Past Defaults	90
Section 6.05	Control by Majority	90
Section 6.06	Limitation on Suits	90
Section 6.07	Rights of Holders to Receive Payment	91
Section 6.08	Collection Suit by Trustee	91
Section 6.09	Trustee May File Proofs of Claim	91
Section 6.10	Priorities	92
Section 6.11	Undertaking for Costs	92
Article 7 TRUSTEE and collateral agent
Section 7.01	Duties of Trustee	92
Section 7.02	Rights of Trustee	93
Section 7.03	Individual Rights of Trustee	95
Section 7.04	Trustee’s and Notes Collateral Agent’s Disclaimer	95
Section 7.05	Notice of Defaults	95
Section 7.06	[RESERVED]	95
Section 7.07	Compensation and Indemnity	95
Section 7.08	Replacement of Trustee	96
Section 7.09	Successor Trustee or Successor Notes Collateral Agent by Merger, etc.	97
Section 7.10	Eligibility; Disqualification	97
Article 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	97
Section 8.02	Legal Defeasance and Discharge	98
Section 8.03	Covenant Defeasance	98
Section 8.04	Conditions to Legal or Covenant Defeasance	99
Section 8.05	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	100
Section 8.06	Repayment to Company	100
Section 8.07	Reinstatement	100

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		Page
Article 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01	Without Consent of Holders	101
Section 9.02	With Consent of Holders	102
Section 9.03	Revocation and Effect of Consents	105
Section 9.04	Notation on or Exchange of Notes	105
Section 9.05	Trustee and Notes Collateral Agent to Sign Amendments, etc.	105
Article 10 NOTE GUARANTEES
Section 10.01	Guarantee	106
Section 10.02	Limitation on Guarantor Liability	107
Section 10.03	Execution and Delivery of Supplemental Indenture	107
Section 10.04	Guarantors May Consolidate, etc., on Certain Terms	108
Section 10.05	Releases	109
Article 11 satisfaction and discharge
Section 11.01	Satisfaction and Discharge	110
Section 11.02	Application of Trust Money	111
Article 12 COLLATERAL AND SECURITY
Section 12.01	Collateral	111
Section 12.02	Further Assurances	112
Section 12.03	After-Acquired Property	112
Section 12.04	Release of Liens on Collateral	113
Section 12.05	Authorization of Actions to be Taken by the Trustee or the Notes Collateral Agent under the Collateral Documents and the Pari Passu Intercreditor Agreement	114
Section 12.06	Information Regarding Collateral	115
Section 12.07	Collateral Documents and Pari Passu Intercreditor Agreement	115
Section 12.08	Notes Collateral Agent	116

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Page

Article 13
MISCELLANEOUS

Section 13.01	[RESERVED]	117
Section 13.02	Notices	117
Section 13.03	Communication by Holders with Other Holders	118
Section 13.04	Certificate and Opinion as to Conditions Precedent	118
Section 13.05	Statements Required in Certificate or Opinion	118
Section 13.06	Rules by Trustee, Notes Collateral Agent and Agents	119
Section 13.07	No Personal Liability of Directors, Officers, Employees and Stockholders	119
Section 13.08	Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury	119
Section 13.09	No Adverse Interpretation of Other Agreements	120
Section 13.10	Successors	120
Section 13.11	Severability	120
Section 13.12	Counterpart Originals	120
Section 13.13	Table of Contents, Headings, etc.	120
Section 13.14	USA PATRIOT Act	120
Section 13.15	Interest Act (Canada)	121
Section 13.16	Usury Saving Clause	121
Section 13.17	Limitations Act, 2002 (Ontario)	121

EXHIBITS 

Exhibit A	FORM OF NOTE
Exhibit B	FORM OF CERTIFICATE OF TRANSFER
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E	FORM OF SUPPLEMENTAL INDENTURE

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INDENTURE dated as of March 15, 2023 among Ritchie Bros. Holdings Inc., a Washington corporation, Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, and U.S. Bank Trust Company, National Association, a national banking association, as trustee and notes collateral agent.

The Company (as defined herein) and the Trustee (as defined herein) agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of the 6.750% Senior Secured Notes due 2028 (the “Notes”):

Article 1
DEFINITIONS AND INCORPORATION
BY REFERENCE

Section 1.01         Definitions.

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

“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of Parent or at the time it amalgamates, merges or consolidates with or into Parent or any of its Restricted Subsidiaries or that is assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of Parent or such acquisition, amalgamation, merger or consolidation.

“Additional Notes” means Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.13 and 4.09 hereof, as part of the same series as the Initial Notes.

“Acquisition” means the acquisition of IAA pursuant to the Merger Agreement.

“Acquisition Closing Date” means the date that the Acquisition is consummated.

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

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

“Applicable Calculation Date” means the applicable date of the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Fixed Charge Coverage Ratio, Consolidated Debt Ratio and Consolidated Secured Debt Ratio.

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

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“Applicable Measurement Period” means the most recently completed four consecutive fiscal quarters of Parent immediately preceding the Applicable Calculation Date for which internal financial statements are available.

“Applicable Premium” means, with respect to a Note at any redemption date, the greater of (1) 1.0% of the principal amount of such Note and (2) the excess of (a) the present value at such redemption date of (i) the redemption price of such Note on March 15, 2025 (such redemption price being that described in Section 3.07(b) hereof) plus (ii) all required remaining scheduled interest payments due on such Note through March 15, 2025, computed using a discount rate equal to the Treasury Rate plus 50 basis points; over (b) the then principal amount of such Note on such redemption date. Calculation of the Applicable Premium will be made by the Company or on behalf of the Company by such Person as the Company shall designate; provided, however, that such calculation, confirmation thereof or determination of the Treasury Rate referenced below, shall not be a duty or obligation of the Trustee.

“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/or Clearstream that apply to such transfer or exchange.

“Asset Acquisition” means (1) an Investment by Parent or any Restricted Subsidiary of Parent in any other Person pursuant to which such Person shall become a Restricted Subsidiary of Parent or any Restricted Subsidiary of Parent, or shall be amalgamated or merged with or into Parent or any Restricted Subsidiary of Parent, or (2) the acquisition by Parent or any Restricted Subsidiary of Parent of the assets of any Person (other than a Restricted Subsidiary of Parent) that constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business.

“Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease, assignment or other transfer for value by Parent or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than Parent or a Restricted Subsidiary of Parent of: (1) any Capital Stock of any Restricted Subsidiary of Parent (other than directors’ qualifying shares and shares issued to foreign nationals as required under applicable Law); or (2) any other property or assets of Parent or any Restricted Subsidiary of Parent other than in the ordinary course of business; provided, however, that Asset Sales or other dispositions shall not include:

(a)            a transaction or series of related transactions for which Parent or its Restricted Subsidiaries receive aggregate consideration of less than $25.0 million;

(b)            the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of Parent or the Company as permitted under Section 5.01 hereof;

(c)            the sale, discount or other disposition of inventory;

(d)            the sale or discount of accounts receivable in connection with the compromise or collection thereof or in the ordinary course of business;

(e)            disposals or replacements of obsolete, worn-out or no longer useful equipment or machinery;

(f)             the sale or other disposition of cash or Cash Equivalents;

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(g)             any Restricted Payment that is not prohibited by Section 4.07 or any Restricted Payment that constitutes a Permitted Investment;

(h)             the abandonment of Intellectual Property Rights no longer used or useful in the conduct of the business of Parent or any of its Subsidiaries;

(i)              licenses, sublicenses, leases or subleases granted to others (including licenses of Intellectual Property Rights), and terminations thereof not interfering in any material respect with the business of Parent and its Subsidiaries;

(j)              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 reasonably promptly applied to the purchase price of such replacement property;

(k)             the surrender or waiver of contractual rights and settlement or waiver of contractual or litigation claims by Parent or any Subsidiary;

(l)              the unwinding of any Interest Swap Obligation or Currency Agreements pursuant to its terms;

(m)            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;

(n)             Dispositions of property or assets subject to a Recovery Event;

(o)             Dispositions made in connection with the consummation of the Acquisition that are necessary or advisable to comply with applicable Law or to avoid any impediment to the consummation of the Acquisition under any applicable Law;

(p)             Dispositions of real property so long as the aggregate net book value of all real property sold or otherwise disposed of by Parent and its Restricted Subsidiaries pursuant to this clause (p) in any fiscal year of Parent shall not exceed $200.0 million, and during the term of this Indenture, shall not exceed $400.0 million;

(q)             any disposition of property or assets, or the issuance of securities, by a Restricted Subsidiary to Parent or the Company or by Parent or the Company to a Restricted Subsidiary or a Restricted Subsidiary to a Restricted Subsidiary;

(r)              the granting of, and dispositions in connection with, Permitted Liens;

(s)             foreclosure, condemnation, expropriation or any similar action with respect to any property or other asset of Parent or any of its Restricted Subsidiaries;

(t)             any disposition of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(u)            any surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;

(v)            Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions;

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(w)           a transaction or series of related transactions for which Parent or its Restricted Subsidiaries receive aggregate consideration not to exceed $200.0 million in any fiscal year and $400.0 million during the term of this Indenture;

(x)            Specified Property Sales; and

(y)           a sale, assignment or other transfer of Receivables or Receivables Assets.

In the event that a transaction (or a portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, Parent or the Company, in its sole discretion, will be entitled to divide and classify and reclassify such transaction (or a portion thereof) as an Asset Sale and/or one or more the types of permitted Restricted Payments or Permitted Investments.

“Attributable Indebtedness” means, with respect to any Person on any date, in respect of any finance lease, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“Bankruptcy Code” means Title 11 of the United States Code, as amended.

“Bankruptcy Law” means the Bankruptcy Code, the BIA, the CCAA, and the Winding-Up and Restructuring Act (Canada), and any similar federal, state, provincial, territorial or foreign law for the relief of debtors, or any arrangement, reorganization, receivership, administration, administrative receivership, insolvency, moratorium, assignment for the benefit of creditors, any other marshaling of assets and/or liabilities of a Grantor and/or its affiliates, or any similar law relating to or affecting creditors’ rights generally, including any applicable corporations legislation to the extent the relief sough under such corporations legislation relates to or involves the compromise, settlement or adjustment or arrangement of debt.

“Bankruptcy or Insolvency Case” means any case or proceeding under any Bankruptcy Law.

“Beneficial Holders” means any person who holds a beneficial interest in Notes as shown on the books of the Depositary or a participant of such Depositary.

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

“Board of Directors” means, as to any Person, the board of directors of such Person or any duly authorized committee thereof or, with respect to any Person that is not a corporation, the Person or Persons performing corresponding functions.

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks or financial institutions are authorized to close under the Laws of, or are in fact closed in, the State of New York, the Province of Ontario or the place of payment.

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“Canadian Legend” means the legend set forth in Section 2.06(f)(3) hereof, which is required to be placed on all Notes issued under this Indenture.

“Canadian Restricted Subsidiary” means any Restricted Subsidiary that is organized under the Laws of Canada or any province or territory thereof.

“Canadian Security Agreement” means, collectively, (a) the Canadian security and pledge agreement dated on or about the Escrow Release Date by and among the Company, certain Restricted Subsidiaries party thereto from time to time and the Notes Collateral Agent and (b) each deed of hypothec between each Guarantor that is party thereto and the Notes Collateral Agent, in each case as amended, restated, extended, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.

“Capital Markets Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC or (c) a private placement to institutional accredited investors.

“Capital Stock” means:

(1)            with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; and

(2)            with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as a finance lease under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.

“Cash Equivalents” means:

(1)            United States dollars, Canadian dollars, Euros, British Pounds or any national currency of any participating member state of the European Union or such local currencies held by Parent and its Subsidiaries from time to time in the ordinary course of business;

(2)            marketable direct obligations issued by, or unconditionally guaranteed by, the United States, any Canadian Governmental Authority, Canadian crown corporations, the Netherlands, the United Kingdom, Germany, Spain, France or Australia;

(3)            marketable direct obligations issued by any agency of the United States or any Canadian Governmental Authority and backed by the full faith and credit of the United States or Canada, in each case maturing within one year from the date of acquisition thereof;

(4)            marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, from any Rating Agency selected by the Company as a replacement Rating Agency);

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(5)            commercial paper or corporate bonds maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency);

(6)            certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the Laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250.0 million;

(7)            repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (2) above entered into with any bank meeting the qualifications specified in clause (6) above;

(8)            securities issued or directly and fully guaranteed or insured by any state, commonwealth or territory of the United States of America or any province or territory of Canada or any agency, subdivision or instrumentality thereof or by any foreign government (and that at the time of acquisition have an investment grade rating from S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency)) having maturities of not more than two years after the date of acquisition;

(9)            marketable short term money market and similar securities having the highest rating obtainable from S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, any Rating Agency selected by the Company as a replacement Rating Agency) at the time of acquisition and in each case maturing within two years after the date of acquisition;

(10)         Investments in money market funds that invest substantially all their assets in securities of the types described in clauses (1) through (9) above; and

(11)         Foreign Cash Equivalents.

“Cash Management Agreement” means any agreement to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Cash Pooling Arrangements” means any cash pooling arrangements (including cash concentration arrangements and notional cash pooling arrangements and any replacement thereof from time to time) maintained by Subsidiaries of Parent organized outside of the United States or Canada (or by Parent or Subsidiaries of Parent organized in the United States or Canada to the extent relating solely to the accounts of Parent or such Subsidiaries located outside of the United States or Canada) arising under the terms of a customary agreement with a financial institution in order to facilitate the efficient deployment of cash.

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“Change of Control” means the occurrence of one or more of the following events:

(1)            any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of Parent to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”), together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of this Indenture);

(2)            the approval by the holders of Capital Stock of Parent of any plan or proposal for the liquidation or dissolution of Parent (whether or not otherwise in compliance with the provisions of this Indenture);

(3)            any Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of Parent; or

(4)            Parent ceases to own, directly or indirectly, 100% of the Capital Stock of the Company (other than director qualifying shares).

“Chinese Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of the People’s Republic of China, in an aggregate principal amount at any time outstanding not to exceed $10.0 million.

“Clearstream” means Clearstream Banking, S.A. or any successor securities clearing agency.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means all the “Collateral” (or equivalent term) as defined in any Collateral Document and all other property that is subject or purported to be subject to any Lien in favor of the Notes Collateral Agent pursuant to any Collateral Document, but in any event excluding all Excluded Property.

“Collateral Documents” means (i) prior to the Escrow Release Date, the Escrow Agreement and (ii) from and after the Escrow Release Date, the U.S. Security Agreement, Canadian Security Agreement and all other security agreements, pledge agreements, control agreements, mortgages, collateral assignments, security deeds, deeds to secure debt, deeds of trust, collateral agency agreements, debentures or other instruments or other pledges, grants or transfers for security or agreements related thereto, in each case executed and delivered by Parent, the Company or any other Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral (including financing statements under the UCC) in favor of the Notes Collateral Agent on behalf of itself, the Trustee and the holders of the Notes to secure the Notes and the Note Guarantees, in each case, as amended, modified, renewed, restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its terms and as described under Article 12.

“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, and includes all series and classes of such common stock.

“Company” means Ritchie Bros. Holdings Inc., a Washington corporation, and any and all successors thereto.

“Consolidated Debt Ratio” as of any date of determination means, the ratio of (1) Consolidated Total Indebtedness of Parent and its Restricted Subsidiaries as of the end of the Applicable Measurement Period to (2) Parent’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”

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“Consolidated EBITDA” means, for any period, for Parent and its Restricted Subsidiaries on a consolidated basis, an amount equal to:

(a)            Consolidated Net Income for such period; plus

(b)            the following to the extent deducted in calculating such Consolidated Net Income (other than clauses (iv) and (v)):

(1)            Consolidated Interest Expense for such period;

(2)            federal, state, local and foreign income tax expense for such period;

(3)            depreciation and amortization expense for such period;

(4)            expected cost savings, operating expense reductions and synergies for such period related to the consummation of the Acquisition projected by Parent in good faith to result from actions with respect to which substantial steps have been taken, will be taken, or are expected to be taken; provided that (A) such cost savings, operating expense reductions and synergies are expected to be realized (in the good faith determination of Parent) within 24 months after the closing date of the Acquisition, which are reasonably identifiable and factually supportable and (B) amounts added-back for any period pursuant to this clause (iv) shall not exceed $125.0 million during the term of this Indenture (it being understood that no addbacks pursuant to this clause (iv) shall be permitted subsequent to 24 months after the closing date of the Acquisition);

(5)            expected cost savings, operating expense reductions and synergies for such period related to mergers and other business combinations, acquisitions, Dispositions, restructuring, or cost savings initiatives which are reasonably identifiable and factually supportable and other similar initiatives and projected by Parent in good faith to result from actions with respect to which substantial steps have been taken, will be taken, or are expected to be taken; provided that (A) such cost savings, operating expense reductions and synergies are expected to be realized (in the good faith determination of Parent) within 24 months after such transaction or initiative is consummated and (B) amounts added-back for any period pursuant to this clause (v) shall not exceed 10% of Consolidated EBITDA for such period (calculated prior to giving effect to this clause (v)) (it being understood that no addbacks pursuant to this clause (v) with respect to any specific merger, business combination, acquisition, Disposition, restructuring or cost savings initiative shall be permitted subsequent to 24 months after the applicable merger, business combination, acquisition, Disposition, restructuring or cost savings initiative);

(6)            non-cash losses, charges and expenses (including non-cash compensation charges but excluding (A) losses, charges and expenses to the extent representing an accrual of or reserve for cash losses, charges or expenses in any future period and (B) write-downs or reserves of account receivables or inventory);

(7)            unusual or non-recurring losses, charges and expenses in an aggregate amount not to exceed $50.0 million during such period;

(8)            cash restructuring and related charges and business optimization expenses in an aggregate amount not to exceed $50.0 million during such period;

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(9)            unrealized losses due to foreign exchange adjustments (including losses and expenses in connection with currency and exchange rate fluctuations);

(10)          costs and expenses in connection with the Senior Secured Credit Facilities, this Indenture, the Unsecured Notes Indenture, the proposed acquisition of Euro Auctions and the Acquisition (including one-time expenses associated with vested and unvested options);

(11)          expenses or charges related to any offering of equity interests, Permitted Investment, acquisition (other than the Acquisition), Disposition, recapitalization or incurrence of permitted Indebtedness (whether or not consummated), including non-operating or non-recurring professional fees, costs and expenses related thereto in an aggregate amount not to exceed $50.0 million during such period; and

(12)          losses from discontinued operations and non-ordinary course Dispositions; minus

(c)          the following to the extent included in calculating such Consolidated Net Income: (i) non-cash income or gains, (ii) unrealized gains due to foreign exchange adjustments (including gains in connection with currency and exchange rate fluctuations) and (iii) income or gains from discontinued operations and non-ordinary course Dispositions.

“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the Applicable Measurement Period to Consolidated Fixed Charges paid in cash for the Applicable Measurement Period.

For purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(1)            the incurrence or repayment of any Indebtedness of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Applicable Measurement Period or at any time subsequent to the last day of the Applicable Measurement Period and on or prior to the Applicable Calculation Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Applicable Measurement Period; and

(2)            any asset sales or Asset Acquisitions, including any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated under the Exchange Act attributable to the assets that are the subject of the Asset Acquisition or asset sale during the Applicable Measurement Period) occurring during the Applicable Measurement Period or at any time subsequent to the last day of the Applicable Measurement Period and on or prior to the Applicable Calculation Date, as if such asset sale or Asset Acquisition (including the incurrence or assumption of any such Acquired Indebtedness) occurred on the first day of the Applicable Measurement Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such other Indebtedness that was so guaranteed.

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Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of the Consolidated Fixed Charge Coverage Ratio:

(1)            interest on outstanding Indebtedness determined on a fluctuating basis as of the Applicable Calculation Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Applicable Calculation Date; and

(2)            notwithstanding clause (1) of this paragraph, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“Consolidated Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of:

(1)            Consolidated Interest Expense; plus

(2)            all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary; plus

(3)            all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Capital Stock.

“Consolidated Interest Expense” means, with respect to any Person for any period, the sum of, without duplication:

(1)            the aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including: (a) any amortization of debt discount and amortization or write off of deferred financing costs; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest; and (d) the interest portion of any deferred payment obligation; and

(2)            the interest component of Capitalized Lease Obligations paid and/or scheduled to be paid by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP;

provided, that, notwithstanding anything herein to the contrary, interest in connection with the Notes and the Unsecured Notes shall not constitute Consolidated Interest Expense to the extent (and for so long as) the Notes and the Unsecured Notes have been funded into escrow to fund the Acquisition and remain in escrow.

“Consolidated Net Income” means, for any period, for Parent and its Subsidiaries on a consolidated basis, net income (or loss) for such period; provided that Consolidated Net Income shall exclude:

(a)            extraordinary gains and extraordinary losses for such period,

(b)            solely for the purpose of determining the amount available for Restricted Payments under Section 4.07(a)(iii)(w), any net income (loss) of any Restricted Subsidiary (other than Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, Parent or a Guarantor by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than restrictions that have been waived or otherwise released), except that Parent’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary to the Company, Parent or another Restricted Subsidiary as a dividend or other distribution (subject in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause); and

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(c)            any income (or loss) for such period of any Person if such Person is not a Subsidiary, except that Parent’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Parent or a Subsidiary as a dividend or other distribution.

“Consolidated Secured Debt Ratio” as of any date of determination means, the ratio of (1) Consolidated Total Secured Indebtedness of Parent and its Restricted Subsidiaries as of the end of the Applicable Measurement Period to (2) Parent’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”

“Consolidated Total Assets” means the total consolidated assets of Parent and its Restricted Subsidiaries, as shown on the most recent consolidated balance sheet of Parent and its Restricted Subsidiaries, calculated on a pro forma basis after giving effect to any subsequent acquisition or Disposition of a Person or business.

“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of Parent and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, obligations in respect of purchase money Indebtedness and Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments; (2) all direct or contingent obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments; (3) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) solely to the extent such obligation is evidenced by a note or similar instrument and such obligation is included as a liability on the balance sheet of Parent and its Subsidiaries in accordance with GAAP; and (4) all Guarantees with respect to Indebtedness of the types specified in clauses (1) through (3) above of another Person.

“Consolidated Total Secured Indebtedness” means, as of any date of determination means, the aggregate amount of all outstanding Consolidated Total Indebtedness of Parent and its Restricted Subsidiaries that is secured by Liens as of the end of the Applicable Measurement Period.

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

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

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

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“Credit Facilities” means one or more debt facilities, including the Senior Secured Credit Facilities, or other financing arrangements (including commercial paper facilities or indentures) providing for revolving credit loans, term loans, receivables financing, bankers acceptances, letters of credit, debt securities or other indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements or refinancings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof, whether or not by the same or any other agent, investor, lender or group of lenders (whether or not such added or substituted parties are banks or other institutional lenders), in each case, whether or not any such amendment, supplement, modification, extension, renewal, restatement, refunding, replacement or refinancing occurs simultaneously with the termination or repayment of a prior Credit Facility.

“Credit Facilities Collateral Agent” means the Bank of America, N.A., as collateral agent under the Senior Secured Credit Facilities and its successors and permitted assigns thereunder.

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

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

“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), the Dutch Bankruptcy Code (Faillissementswet), Insolvency Act 1986 (United Kingdom), the Corporations Act 2001 (Cth), the Bankruptcy Act 1966 (Cth), and all other liquidation, provisional liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, administration, insolvency, stay, winding up, deregistration, compromise or composition, reorganization, scheme of arrangement, laws affecting creditors’ rights generally or similar debtor relief laws of the United States, Australia, Canada, Japan, the Netherlands, the United Kingdom, Mexico or other applicable jurisdictions from time to time in effect.

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

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

“Depositary” means Cede & Co. and such other Person as is designated in writing by Parent or the Company and acceptable to the Trustee to act as depository in respect of one or more Notes.

“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by Parent or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as “Designated Non-Cash Consideration” pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

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“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or fundamental change) on or prior to the final maturity date of the Notes; provided, however, only the portion of Capital Stock which is so redeemable or repurchasable prior to such date will be deemed to be Disqualified Capital Stock. For the avoidance of doubt, Parent’s Series A preferred stock shall not be considered Disqualified Capital Stock.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by Parent or any Subsidiary, including any Sale and Leaseback Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Recovery Event.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, and all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person.

“Equity Offering” means any public or private offering of Qualified Capital Stock of Parent (other than offerings registered on Form S-8 or any successor form).

“Escrow Account” has the meaning assigned to it in the Escrow Agreement.

“Escrow Agent” has the meaning assigned to it in the Escrow Agreement.

“Escrow Agreement” means that certain Escrow Agreement, dated as of the date hereof, by and among the Company, the Trustee and the Escrow Agent, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Escrow End Date” means September 30, 2023.

“Escrow Release” means the release of all of the Escrowed Property from the Escrow Account and the release of the Trustee’s Lien thereon and security interest therein pursuant to and in accordance with the terms of the Escrow Agreement.

“Escrow Release Date” means the date on which the Escrow Release occurs.

“Escrowed Property” has the meaning assigned to it in the Escrow Agreement.

“Euro Auctions” means Euro Auctions Limited, William Keys & Sons Holdings Limited, Equipment & Plant Services Ltd and Equipment Sales Ltd, each being a private limited company incorporated in Northern Ireland.

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, or any successor securities clearing agency

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

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"Excluded CFC Entity” means (a) a CFC, (b) a U.S. Person all or substantially all of the assets of which consist of the Equity Interests of one or more CFCs or (c) a U.S. Person that is a Subsidiary of a CFC; except in each case of clause (a), (b), or (c), to the extent as agreed under the Senior Secured Credit Facilities; and provided, that neither Ironplanet Mexico, S. de R.L. de C.V. n or Synetiq Holdings Limited shall be considered an Excluded CFC Entity. For this purpose (x) a “CFC” means any controlled foreign corporation for U.S. federal income tax purposes that is owned (within the meaning of Section 958(a) of the Code) by either the Company or any Affiliate of the Company that is a U.S. Person and a corporation for U.S. federal income tax purposes, and (y) a “U.S. Person” means any United States person (within the meaning of Section 7701(a)(30) of the Code).

“Excluded Property” means, with respect to the Company or any Guarantor,

(1)            any owned or leased real property;

(2)            unless otherwise agreed in writing by the Company and the Notes Collateral Agent, any Intellectual Property Rights (i) for which a perfected Lien thereon is not effected either by filing of a UCC financing statement, a PPSA financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office, the United States Patent and Trademark Office or the Canadian Intellectual Property Office or (ii) that consist of any intent to use trademark application prior to the filing 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 U.S. federal law;

(3)            unless otherwise agreed in writing by the Company and the Notes Collateral Agent, any personal property (in the case of the UCC or the PPSA), in each case other than property described in clause (2) above, for which the attachment or perfection of a Lien thereon is not governed by the UCC or the PPSA, as applicable, any motor vehicles and other assets subject to certificates of title that any of Parent, the Company or any other Guarantor takes interests in (whether as consignee or purchaser) for the purposes of selling at auction, to the extent that a security interest therein cannot be perfected by filing a UCC or PPSA financing statement;

(4)            letter of credit rights (other than to the extent such rights can be perfected by filing a UCC or a PPSA financing statement);

(5)            “margin stock” (within the meaning of Regulation U of the Federal Reserve Board) and pledges and security interests prohibited by applicable law, rule or regulation or agreements with any Governmental Authority or which would require governmental (including regulatory) consent, approval, license or authorization to provide such security interest unless such consent, approval, license or authorization has been received, in each case, after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA or any other applicable law;

(6)            (A) any Equity Interests of a Person to the extent that, and for so long as (i) such Equity Interests constitute less than 100% of all Equity Interests of such Person, and the Person or Persons holding the remainder of such Equity Interests are not Parent or its Restricted Subsidiaries and (ii) the granting of a security interest in such Equity Interests in favor of the Notes Collateral Agent are not permitted by the terms of such issuing Person’s Organization Documents or otherwise require the consent of a Person or Persons who are not Restricted Subsidiaries of Parent (other than any approval or consent that may be required from the board of directors or shareholders of any Canadian Restricted Subsidiary pursuant to its constating documents), other than to the extent that any such law, rule, regulation, term, prohibition, restriction or condition would be rendered ineffective pursuant to the UCC, the PPSA or any other applicable law (including Debtor Relief Laws) or principles of equity, (B) any Equity Interests of any Excluded CFC Entity other than 65% (or such greater percentage that (i) could not reasonably be expected to cause the undistributed earnings of such Excluded CFC Entity or of the Excluded CFC Entities owned by such Excluded CFC Entity as determined for United States federal income tax purposes, to be treated as a deemed dividend for United States federal income tax purposes and (ii) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in such Excluded CFC Entity, and (C) any assets owned by an Excluded CFC Entity;

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(7)            deposit accounts, securities accounts, commodities accounts and other similar accounts maintained for the sole purpose of funding payroll obligations, employee benefit or health benefit obligations, tax obligations, escrow arrangements or holding funds owned by Persons other than Parent or any Restricted Subsidiary;

(8)            the Equity Interests of any direct International Restricted Subsidiary (other than a Canadian Restricted Subsidiary) of any of Parent, the Company or any other Guarantor to the extent not required to be pledged to secure the Obligations pursuant to Section 12.03;

(9)            any property which is subject to a Lien of the type described in clause (9) of the definition of “Permitted Liens” pursuant to documents which prohibit Parent, the Company or any other Guarantor from granting any other Liens in such property;

(10)          any General Intangible (as defined in the UCC), permit, lease, license, contract, agreement, consent, entitlement, arrangement or other Instrument (as defined in the UCC) of Parent, the Company or any other Guarantor to the extent the grant of a security interest in such General Intangible, permit, lease, license, contract, agreement, consent, entitlement, arrangement or other Instrument in the manner contemplated by any Collateral Document, under the terms thereof or under applicable law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter Parent, the Company or such Guarantor’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both); provided that (i) any such limitation described in this clause (10) shall only apply to the extent that any such prohibition would not be rendered ineffective pursuant to the UCC, the PPSA or any other applicable law (including Debtor Relief Laws) or principles of equity and (ii) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable law, General Intangible, permit, lease, license, contract, agreement, consent, entitlement, arrangement or other Instrument, to the extent sufficient to permit any such item to become Collateral hereunder, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security interest in such General Intangible, permit, lease, license, contract , agreement, consent, entitlement, arrangement or other Instrument shall be automatically shall be included as “Collateral”; and

(11)            any assets of Parent, the Company or such Guarantor as to which the Credit Facilities Collateral Agent (or, if not the Credit Facilities Collateral Agent, the Applicable Collateral Agent) and the Company agree in writing (including by e-mail) that the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting a security interest in such assets is excessive in relation to the value of such assets as Collateral.

“Existing Notes” means Parent’s existing 5.375% Senior Notes due 2025.

“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors of Parent or the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of Parent or the Company.

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“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the Issue Date (including regulations and guidance thereunder), (b) any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with, (c) any agreement (including any intergovernmental agreement) entered into in connection therewith, including pursuant to Section 1471(b)(1) of the Code or (d) any Law, regulation, rule or practice implementing an intergovernmental agreement or approach thereto or therewith.

“Foreign Cash Equivalents” means certificates of deposit or bankers acceptances of any bank organized under the Laws of the United Kingdom, Canada, Singapore, Australia, China or any country that is a member of the European Union, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof, in each case with maturities of not more than one year from the date of acquisition.

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

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

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with the applicable provisions of this Indenture.

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States, Canada or the United Kingdom (including, in each case, any agency or instrumentality thereof) for the payment of which obligations or guarantees the full faith and credit of the United States, Canada or the United Kingdom is pledged and which are not callable or redeemable at the issuer’s option.

“Governmental Authority” means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including the Financial Conduct Authority, the Prudential Regulation Authority, any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

“Guarantor” means: Parent and each of the Company’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor; provided that any Person constituting a Guarantor shall cease to constitute a Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture. Any entity that is an Excluded CFC Entity will not provide a Guarantee, except in each case to the extent as agreed under the Senior Secured Credit Facilities.

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

“IAA” means IAA, Inc., a Delaware corporation.

“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 issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.

“Indebtedness” means, with respect to any Person, without duplication:

(1)            all Obligations of such Person for borrowed money;

(2)            all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(3)            all Capitalized Lease Obligations of such Person;

(4)            all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business and any earn-out obligation until such obligation becomes a liability on the balance sheet of Parent and its Restricted Subsidiaries in accordance with GAAP and if not paid when due and payable);

(5)            all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction which is issued in respect of Indebtedness referred to in clauses (1) through (4) above and clause (8) below;

(6)            guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;

(7)            all Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured;

(8)            all net Obligations under Currency Agreements and interest swap agreements of such Person; and

(9)            all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any.

For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by Parent or the Company. In addition, the term “Indebtedness” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller, (iii) accrued expenses and (iv) obligations in respect of operating leases. For all purposes hereof, the Indebtedness of Parent and its Wholly Owned Subsidiaries shall exclude intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness among Parent and its Wholly Owned Subsidiaries having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business.

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

“Independent Financial Advisor” means a firm: (1) that does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in Parent or the Company and (2) that, in the judgment of the Board of Directors of Parent or the Company, is otherwise independent and qualified to perform the task for which it is to be engaged.

“Indian Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of India, in an aggregate principal amount at any time outstanding not to exceed $5.0 million.

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

“Initial Notes” means the $550.0 million aggregate principal amount of Notes issued by the Company on the date hereof under this Indenture.

“Initial Purchasers” means the initial purchasers party to the Purchase Agreement.

“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 are not also QIBs.

“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include interest rate swaps, caps, floors, collars and similar agreements.

“International Restricted Subsidiary” means any Restricted Subsidiary that is not a U.S. Restricted Subsidiary.

“Investment” means, with respect to any Person, any direct or indirect loan or other extension of credit (including a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other Person. “Investment” shall exclude extensions of trade credit by Parent and its Restricted Subsidiaries on commercially reasonable terms. If Parent or any Restricted Subsidiary of Parent sells or otherwise disposes of any Common Stock of any direct or indirect Wholly Owned Restricted Subsidiary of Parent such that, after giving effect to any such sale or disposition, Parent no longer owns, directly or indirectly, 100% of the outstanding Common Stock of such Restricted Subsidiary, Parent shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Common Stock of such Restricted Subsidiary not sold or disposed of.

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For purposes of Section 4.07 and Section 4.19:

(1)            “Investment” will include the portion (proportionate to Parent’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary of Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to Parent’s equity interest in such Subsidiary) of the fair market value of the net assets (as conclusively determined by the Board of Directors of Parent or the Company in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and

(2)            any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of Parent or the Company.

“Intellectual Property Rights” means the legal right to use all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are necessary for the operation of Parent or its’s Subsidiaries’ respective businesses.

“Investment Grade Rating” means a rating of Baa3 or better by Moody’s and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).

“Issue Date” means March 15, 2023.

“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial 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, in each case whether or not having the force of Law.

“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).

“Limited Condition Transaction” means (1) any acquisition or other Investment, including by way of merger, amalgamation or consolidation, by Parent or one or more of its Restricted Subsidiaries, with respect to which Parent or such Restricted Subsidiaries have entered into an agreement or are otherwise contractually committed to consummate and the consummation of which is not expressly conditioned upon the availability of, or on obtaining, financing from a third party non-Affiliate, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock, (3) any Restricted Payment requiring irrevocable notice in advance thereof and (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale.”

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“Merger Agreement” means the Agreement and Plan of Merger and Reorganization by and among Parent, the Company, Impala Merger Sub I, LLC, Impala Merger Sub II, LLC and IAA (together with all exhibits and schedules thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Acquisition Closing Date).

“Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.

“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by Parent or any of its Restricted Subsidiaries from such Asset Sale net of:

(1)            out-of-pocket expenses and fees relating to such Asset Sale (including legal, accounting and investment banking fees, brokerage and sales commissions, and survey, title and recording expenses, transfer taxes and expenses incurred for preparing such asset for sale, payments made in order to obtain a necessary consent or required by applicable Law, any relocation expenses incurred as a result of the Asset Sale and other fees and expenses, including title and recordation expenses);

(2)            taxes paid or payable, or estimated in good faith to be payable as a result of the Asset Sale, after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;

(3)            repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale; and

(4)            appropriate amounts to be provided by Parent or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by Parent or any Restricted Subsidiary, as the case may be, after such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale.

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

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

“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“Notes Collateral Agent” means U.S. Bank Trust Company, National Association, until a successor replaces it in accordance with the applicable provisions of the applicable Collateral Documents and thereafter means the successor serving hereunder.

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“Obligations” means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Offering Circular” means the offering circular, dated March 1, 2023, pursuant to which the Initial Notes were offered to potential purchasers.

“Officer” means, with respect to any Person, any of the following: the Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel, Vice President, Treasurer, Secretary, Assistant Secretary or Assistant Treasurer (including interim officers).

“Officer’s Certificate” means, with respect to any Person, a certificate signed on behalf of such Person by an Officer of such Person, which meets the requirements set forth in this Indenture. Unless the context otherwise requires, “Officer’s Certificate” refers to an Officer’s Certificate of the Company.

“Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or counsel to Parent or the Company, or other counsel who is reasonably acceptable to the Trustee or the Notes Collateral Agent, as applicable.

“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 or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, 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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

“Parent” means Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation and the parent of the Company.

“Pari Passu Indebtedness” means any Indebtedness of Parent, the Company or any other Guarantor that is equal in right of payment with the Notes or the Note Guarantee of such Guarantor, as applicable.

“Pari Passu Intercreditor Agreement” means that certain Pari Passu Intercreditor Agreement, to be entered into on or around the Escrow Release Date, by and among the Notes Collateral Agent, as Initial Secured Notes Agent (as defined therein), the Credit Facilities Collateral Agent, as Initial Term Loan Agent (as defined therein), and each additional agent from time to time party thereto, and acknowledged by the grantors party thereto, as amended, restated, replaced, amended and restated, extended, supplemented or otherwise modified from time to time in accordance with its terms and this Indenture.

“Parity Lien” means a Lien granted to the Notes Collateral Agent or other Parity Lien Representative under any Parity Lien Indebtedness for the benefit of the holders thereof, at any time, upon the Collateral to secure Parity Lien Obligations.

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“Parity Lien Indebtedness” means:

(1)            Indebtedness represented by the Notes initially issued by the Company under this Indenture on the Issue Date;

(2)            Indebtedness Incurred by Parent, the Company or any of the other Guarantors under the Senior Secured Credit Facilities that is intended by the Company to be secured equally and ratably with the Indebtedness represented by the notes initially issued by the Company under this Indenture by a Parity Lien that is permitted to be Incurred and/or secured by a Parity Lien under this Indenture; and

(3)            any other Indebtedness of Parent, the Company or any other Guarantor (including Additional Notes) that is intended by the Company to be secured equally and ratably with the Parity Lien Obligations by a Parity Lien that is permitted to be Incurred and secured by a Parity Lien under this Indenture; provided that in the case of any Indebtedness referred to in this clause (3):

(a)      such Indebtedness (i) is in replacement of any Indebtedness referred to in clauses (1) or (2) above in accordance with the terms and conditions of the Pari Passu Intercreditor Agreement or (ii) constitutes “Additional First Lien Debt” under the Pari Passu Intercreditor Agreement designated by the Company, in accordance with the terms and conditions of the Pari Passu Intercreditor Agreement; and

(b)      the Parity Lien Representative of such Indebtedness becomes a party to the Pari Passu Intercreditor Agreement in accordance with the terms thereof.

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

“Parity Lien Representative” means (1) the Notes Collateral Agent, in the case of the Notes, (2) the Credit Facilities Collateral Agent, in the case of the Senior Secured Credit Facilities, and (3) in the case of any other Series of Parity Lien Indebtedness, the trustee, agent or representative of the holders of such Series of Parity Lien Indebtedness who is appointed as a representative of such Series of Parity Lien Indebtedness (for purposes related to the administration of the applicable security documents related thereto) pursuant to the indenture, credit agreement or other agreement governing such series of Parity Lien Indebtedness and becomes a party to the Pari Passu Intercreditor Agreement in accordance with the terms thereof.

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

“Permitted Intercompany Activities” means any transactions between or among Parent and its Restricted Subsidiaries that are entered into in the ordinary course of business of Parent and its Restricted Subsidiaries and, in the good faith judgment of Parent are necessary or advisable in connection with the ownership or operation of the business of Parent and its Restricted Subsidiaries, including, but not limited to, (i) payroll, cash management, cash pooling, purchasing, tax, accounting, insurance and hedging arrangements; and (ii) management, technology and licensing arrangements.

“Permitted Investments” means:

(1)              Investments by Parent or any Restricted Subsidiary of Parent in any Person that is or will become after such Investment a Restricted Subsidiary of Parent or that will merge, amalgamate or consolidate into Parent or a Restricted Subsidiary of Parent;

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(2)              Investments in Parent by any Restricted Subsidiary of Parent;

(3)              Investments in cash and Cash Equivalents;

(4)              loans and advances to employees and officers of Parent and its Subsidiaries in the ordinary course of business for reasonable and customary business-related purposes not in excess of $30.0 million at any one time outstanding;

(5)              Currency Agreements and Interest Swap Obligations entered into in the ordinary course of Parent’s or its Restricted Subsidiaries’ businesses and otherwise in compliance with this Indenture;

(6)              additional Investments in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA of the Applicable Measurement Period;

(7)              Investments received (x) pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditors, suppliers or customers or in good faith settlement of delinquent obligations of such trade creditors, suppliers or customers; (y) as a result of the foreclosure by Parent or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title, or (z) as a result of litigation, or other disputes with Persons who are not Affiliates of Parent;

(8)              Investments made by Parent or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10;

(9)              Investments represented by guarantees that are otherwise permitted under this Indenture;

(10)            Investments the payment for which is Qualified Capital Stock of Parent;

(11)            Investments by Parent consisting of obligations of one or more officers, directors or other employees of Parent or any of its Subsidiaries in connection with such officers’, directors’ or employees’ acquisition of shares of capital stock of the Company so long as no cash is paid by the Company or any of its Subsidiaries to such officers, directors or employees in connection with the acquisition of any such obligations;

(12)            any Investment (x) existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date, (y) solely with respect to IAA and its subsidiaries, existing on the Escrow Release Date, so long as such Investment was not made in contemplation of the Acquisition or (z) consisting of any replacement, refinancing, extension, modification or renewal of any Investment existing on the Issue Date (or, with respect to IAA and its subsidiaries, the Escrow Release Date); provided that the amount of any such Investment may only be increased (i) as required by the terms of such Investment as in existence on the Issue Date (or, with respect to IAA and its subsidiaries, the Escrow Release Date) or (ii) as otherwise permitted under this Indenture;

(13)            stock, obligations or securities received in satisfaction of judgments;

(14)            advances, loans, rebates and extensions of credit (including the creation of receivables) to suppliers, customers and vendors, and performance guarantees, in each case in the ordinary course of business;

(15)            Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

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(16)            securities issued by the World Bank or Federal Bank for Reconstruction and Development;

(17)            Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

(18)            (i) intercompany advances among Parent and its Subsidiaries arising from their cash management and accounting operations , (ii) intercompany loans, advances, or Indebtedness among Parent and its Subsidiaries having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and (iii) to the extent constituting Investments, obligations permitted under Section 4.09(b)(7)(c);

(19)            advances of payroll payments to employees in the ordinary course of business;

(20)            Investments in prepaid expenses, negotiable instruments held for collection and lease and utility and worker’s compensation deposits provided to third parties in the ordinary course of business;

(21)            (i) Investments made in accordance with Parent’s investment policy as in effect from time to time, and (ii) Investments funded with net proceeds of any issuance of Capital Stock by Parent;

(22)            Investments in connection with or related to the Transactions;

(23)            promissory notes and other noncash consideration received in connection with any Disposition permitted by this Indenture;

(24)            Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

(25)            Investments made in connection with Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions;

(26)            additional Investments so long as (i) immediately after giving effect to such Investment, no Event of Default exists, and (ii) immediately after giving pro forma effect to any such Investment, the Consolidated Debt Ratio shall be less than or equal to 3.25 to 1.00;

(27)            to the extent constituting Investments, loans provided by Parent or any Restricted Subsidiary to third parties (and secured by such third party’s equipment) consistent with the line of business engaged in by Parent as of the Issue Date; and

(28)           (i) Investments in any Person in connection with a Receivables Facility; provided, however, that such Investment is in the form of a purchase money note, contribution of additional receivables or any equity interest, and (ii) contributions of Receivables Assets to any Person in connection with a Receivables Facility.

“Permitted Liens” means the following types of Liens:

(1)            Liens for taxes, assessments or governmental charges or claims either (a) not delinquent for a period of more than 30 days or (b) are being contested in good faith by appropriate proceedings and as to which Parent or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP;

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(2)            statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen and repairmen, construction Liens and other Liens imposed by Law (including Liens imposed under Laws governing the administration of Canadian pension plans) or pursuant to customary reservations or retentions of title incurred in the ordinary course of business for sums not yet delinquent for a period of more than 30 days or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP has been made in respect thereof;

(3)            Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business in connection therewith, and pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of insurance carriers or to secure the performance of tenders, trade contracts, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (including those to secure health safety and environmental obligations and exclusive of obligations for the payment of borrowed money);

(4)            judgment Liens securing the payment of money (or appeal or other surety bonds relating to such judgments) not giving rise to an Event of Default;

(5)            easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of the applicable Person;

(6)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(7)            Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

(8)            Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of Parent or any of its Restricted Subsidiaries, including rights of offset and set-off;

(9)            Liens securing Capitalized Lease Obligations and Purchase Money Indebtedness permitted pursuant to Section 4.09(b)(13) hereof; provided, however, that in the case of Purchase Money Indebtedness (a) the Indebtedness shall not be secured by any property or assets of Parent or any Restricted Subsidiary of Parent other than the property and assets so acquired or constructed and the proceeds thereof and (b) the Lien securing such Indebtedness shall be created within 270 days of such acquisition or construction or, in the case of a refinancing of any Purchase Money Indebtedness, within 270 days of such refinancing;

(10)            Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture;

(11)            Liens securing Indebtedness under Currency Agreements;

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(12)            Liens securing Acquired Indebtedness incurred in accordance with Section 4.09 hereof; provided that:

(a)            such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent; and

(b)            such Liens do not extend to or cover any property or assets of Parent or of any of its Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of Parent or a Restricted Subsidiary of Parent and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent;

(13)            Liens on assets of a Restricted Subsidiary of Parent that is not a Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under this Indenture;

(14)            leases, subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of Parent and its Restricted Subsidiaries;

(15)            (i) banker’s Liens, rights of netting and/or setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary course of business (including for the avoidance of doubt under any Cash Pooling Arrangements) and (ii) Liens arising from Cash Pooling Arrangements or granted in support thereof;

(16)            any interest of title of a lessor under, and Liens arising from filing UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to leases;

(17)            Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of custom duties in connection with the importation of goods;

(18)            rights of customers with respect to inventory which arise from deposits and progress payments made in the ordinary course of business;

(19)            Liens on assets of International Restricted Subsidiaries (other than Canadian Restricted Subsidiaries) securing Indebtedness permitted pursuant to Section 4.09(b)(14) hereof;

(20)            additional Liens in an aggregate amount at the time of incurrence not to exceed the greater of (A) $330.0 million and (B) 30% of Consolidated EBITDA for the Applicable Measurement Period;

(21)            at all times prior to the Escrow Release Date, Liens to secure Obligations under the escrow arrangements in respect of the Notes;

(22)            Liens (a) existing as of the Issue Date or (b) solely with respect to IAA and its subsidiaries, existing as of the Escrow Release Date (so long as such Lien was not incurred in contemplation of the Acquisition), to the extent and in the manner such Liens are in effect on the Issue Date or the Escrow Release Date, as applicable;

(23)            Liens securing (a) the Notes issued on the Issue Date and the related Note Guarantees and (b) Indebtedness that is junior lien in priority (so long as any such Liens are subject to a junior lien intercreditor agreement);

(24)            Liens of Parent or the Company or a Wholly Owned Restricted Subsidiary of Parent or the Company on assets of any Restricted Subsidiary of Parent and Liens on assets of Parent or the Company in favor of a Wholly Owned Restricted Subsidiary that is a Guarantor;

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(25)            Liens deemed to exist in connection with Investments in repurchase agreements;

(26)            Liens of a collection bank arising under the UCC, or other applicable Law, on items in the course of collection;

(27)            reservations, limitations provisos and conditions expressed in any original grants from any Governmental Authority or other grants of real or immovable property, or interests therein, which do not materially affect the use of the affected land or detract from the value thereof;

(28)            the rights reserved to or vested in governmental authorities by statutory provisions or by the terms of leases, licenses, franchises, grants or permits, which affect any land, to terminate the leases, licenses, franchises, grants or permits or to require annual or other periodic payments as a condition of the continuance thereof;

(29)            Liens in favor of public utilities or to any municipalities or governmental authorities or other public authorities when required by such utilities, municipalities or governmental authorities or such other public authorities in connection with the supply of services or utilities to Parent or any of its Subsidiaries;

(30)            Liens (A) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Indenture to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any disposition permitted under this Indenture (including any letter of intent or purchase agreement with respect to such Investment or disposition) or (B) consisting of an agreement to dispose of any property in a disposition permitted under this Indenture, in each case, solely to the extent such Investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

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

(32)            in the case of Indebtedness permitted under this Indenture issued into escrow, Liens on the proceeds of such Indebtedness and any cash or Cash Equivalents consisting of prefunded accrued interest on, or additional funds or premium in respect of, such Indebtedness, and any investments with respect to such proceeds, in each case for so long as such funds remain in escrow;

(33)            Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness that has been secured by a Lien permitted under this Indenture and that has been incurred without violation of this Indenture; provided, however, that such Liens: (i) are no less favorable to the Holders and are not more favorable to the lienholders, in each case in any material respect, with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any categories of property or assets of the Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced.

(34)            Liens securing existing or future borrowings under Credit Facilities incurred pursuant to Section 4.09(b)(2) hereof (provided that, to the extent such Liens are Liens on Collateral, any such Liens are subject to the Pari Passu Intercreditor Agreement);

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(35)            Liens securing Indebtedness incurred pursuant to Section 4.09(b)(17) hereof;

(36)            Liens securing Indebtedness incurred pursuant to Section 4.09(b)(19) hereof;

(37)            Liens in favor of a consignor encumbering assets delivered to Parent or a Restricted Subsidiary on consignment in the ordinary course of business;

(38)            deposits to secure the performance of bids, trade contracts, government contracts and leases (other than Indebtedness), 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;

(39)            Liens on the Capital Stock of Unrestricted Subsidiaries; and

(40)            any encumbrance or restriction existing under or by reason of contractual requirements in connection with a Receivables Facility.

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

“PPSA” means the Personal Property Security Act (Ontario), together with any regulations thereto; provided that, if the grant, attachment, perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Personal Property Security Act as in effect in a Canadian jurisdiction other than the Province of Ontario, “PPSA” means the Personal Property Security Act as in effect from time to time in such other jurisdiction or, in the case of the Province of Quebec, the Civil Code of Quebec, as applicable, for purposes of the provisions hereof relating to such grant, attachment, perfection, effect of perfection or non-perfection or priority.

“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.

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

“Purchase Agreement” means the Purchase Agreement dated March 1, 2023 by and among the Company, Parent and Goldman Sachs & Co. LLC, as representative of the several initial purchasers named therein.

“Purchase Money Indebtedness” means Indebtedness of Parent and its Restricted Subsidiaries incurred for the purpose of financing all or any part of the acquisition, or the cost of installation, construction, repair, replacement or improvement, of fixed or capital assets, property or equipment.

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

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

“Rating Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Notes for reasons outside of the control of the Company, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by Parent or the Company as a replacement agency for Moody’s or S&P, as the case may be.

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“Receivables” means accounts receivable, royalty or other revenue streams, including contract rights, lockbox accounts, records with respect to such accounts receivable, royalty or other revenue streams and other rights to payment and other assets related thereto created by or arising from sales of goods, leases of goods or the rendition of services rendered no matter how evidenced whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise).

“Receivables Assets” means Receivables, the proceeds thereof and other revenue streams and other rights to payment customarily sold, transferred, contributed or pledged together with such Receivables.

“Receivables Facility” means a public or private transfer, sale, financing or pledge of Receivables Assets by which the Company or any Restricted Subsidiary directly or indirectly securitizes specified Receivables Assets or pledges such specified Receivables Assets in a secured financing.

“Recovery Event” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Company or any Subsidiary.

“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness, in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings; provided that the principal amount of such Refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing.

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

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

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

“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee having direct responsibility for the administration of this Indenture and the Notes (or any successor group of the Trustee) and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Restricted Definitive Note” means a Definitive Note bearing, or that is required to bear, the Private Placement Legend.

“Restricted Global Note” means a Global Note bearing, or that is required to bear, the Private Placement Legend.

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

“Restricted Subsidiary” of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary. Unless otherwise expressly noted herein, the term “Restricted Subsidiary” of Parent includes the Company.

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

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

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

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

“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to Parent or a Restricted Subsidiary of any property, whether owned by Parent or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by Parent or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such property.

“S&P” means Standard & Poor’s Global Ratings, or any successor to the rating agency business thereof.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the United States Securities Act of 1933, as amended.

“Secured Foreign Credit Facilities” means (a) the Chinese Facilities, (b) the Indian Facilities, (c) the Singapore Facilities and (d) any other lines of credit, credit agreements or similar facilities or extensions of credit made to one or more International Restricted Subsidiaries (other than Subsidiaries organized under the Laws where Parent, the Company and any then-existing Guarantor is organized) in an aggregate principal at any time outstanding not to exceed the greater of $250.0 million and 20% of Consolidated EBITDA for the Applicable Measurement Period.

“U.S. Security Agreement” means that certain Notes Security and Pledge Agreement, dated on or about the Escrow Release Date, by and among the Company, Certain Restricted Subsidiaries party thereto from time to time and the Notes Collateral Agent, as amended, restated, extended, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.

“Senior Secured Credit Facilities” means the Credit Agreement, dated as of October 27, 2016, by and among Parent, the subsidiary borrowers party thereto, the guarantors party thereto, Bank of America, N.A., as administrative agent, U.S. swing line lender and L/C issuer, Royal Bank of Canada, as Canadian swing line lender and L/C issuer, and the other lenders party thereto, together with the related documents thereto (including any guarantee agreements and security documents), in each case as amended to the date of the Offering Circular and as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of Parent as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders (whether or not such added or substituted parties are banks or other institutional lenders).

“Series” means, (a) with respect to the holders of Parity Lien Indebtedness, each of (1) the Notes Collateral Agent, the Trustee and the holders of the Notes (in their capacities as such), in the case of the Notes, (2) the Credit Facilities Collateral Agent and the holders of the Credit Facilities Obligations (in their capacities as such), in the case of the Senior Secured Credit Facilities, and (3) the holders of any other Series of Parity Lien Indebtedness that become party to the Pari Passu Intercreditor Agreement and the trustee, agent or representative of the holders of such Series of Parity Lien Indebtedness who is appointed as a representative of such Series of Parity Lien Indebtedness (for purposes related to the administration of the applicable security documents related thereto) pursuant to the indenture, credit agreement or other agreement governing such Series of Parity Lien Indebtedness (in their capacities as such) and (b) with respect to any Parity Lien Obligations, each of (1) the Obligations in respect of the Notes, (2) the Credit Facilities Obligations and (3) the Obligations in respect of other Parity Lien Indebtedness which, pursuant to a joinder agreement, are to be represented under the Pari Passu Intercreditor Agreement by a common collateral agent (in its capacity as such for such other Parity Lien Indebtedness).

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“Significant Subsidiary,” with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w) of Regulation S-X under the Securities Act.

“Singapore Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of Singapore, in an aggregate principal amount at any time outstanding not to exceed $10.0 million.

“Specified Property Sales” means the sale of certain real estate properties with an aggregate purchase price of $200.0 million.

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance with the terms of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“Subordinated Indebtedness” means Indebtedness of Parent, the Company or any other Guarantor that is contractually subordinated in right of payment to the Notes or the Note Guarantee of such Guarantor, as the case may be.

“Subsidiary” with respect to any Person, means:

(1)            any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or through another Subsidiary, by such Person; or

(2)            any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or through another Subsidiary, owned by such Person.

“Tax Act” means the Income Tax Act (Canada).

“Taxes” means any present or future tax, duty, levy, impost, assessment or other government charge (including penalties, interest and any other liabilities related thereto) imposed or levied by or on behalf of a Taxing Authority.

“Taxing Authority” means any government or any political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax.

“Transactions” means, collectively, (i) the Acquisition, (ii)  the offering of the Initial Notes and the offering of the Unsecured Notes, (iii) borrowings under the Senior Secured Credit Facilities, (iv) the redemption of the Existing Notes, (v) the issuance of common stock by Parent in connection with the Acquisition and (vi) all other transactions related to or incidental to, or in connection with, any of the foregoing (including the payment of fees and expenses in connection with each of the foregoing).

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“Treasury Securities” means any investment in obligations issued or guaranteed by the United States government or any agency thereof, in each case, maturing no later than the Escrow End Date.

“Treasury Rate” means, with respect to a redemption date, the yield to maturity at the time of computation of United States Treasury Securities with a constant maturity (as compiled and published in the most recent Selected Interest Rates (Daily)-H.15 that has become publicly available at least two Business Days prior to such redemption date (or, if such Selected Interest Rates is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to March 15, 2025; provided, however, that if the period from such redemption date to March 15, 2025 is not equal to the constant maturity of the United States Treasury Security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from such redemption date to March 15, 2025 is less than one year, the weekly average yield on actually traded United States Treasury Securities adjusted to a constant maturity of one year shall be used.

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

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York except as such term may be used in connection with the perfection of Collateral and then the applicable jurisdiction with respect to such affected Collateral shall apply.

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

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

“Unrestricted Subsidiary” of any Person means:

(1)            any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and

(2)            any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of Parent or the Company may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, Parent, the Company or any other Subsidiary of Parent or the Company that is not a Subsidiary of the Subsidiary to be so designated; provided that:

(1)            the Company certifies to the Trustee that such designation complies with Section 4.07; and

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(2)            each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Parent or any of its Restricted Subsidiaries.

The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if:

(1)            immediately after giving effect to such designation, the Company is able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a); and

(2)            immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.

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

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

“U.S. Restricted Subsidiary” means any Restricted Subsidiary that is organized under the Laws of any state of the United States or the District of Columbia.

“Unsecured Notes” means the $800.0 million aggregate principal amount of Senior Notes due 2031 offered by the Company pursuant to the Offering Circular and issued pursuant to the Unsecured Notes Indenture.

“Unsecured Notes Indenture” means the indenture, dated as of March 15, 2023 (as supplemented or otherwise modified from time to time) by and among Parent, the Company, the guarantors party from time to time thereto and U.S. Bank Trust Company, National Association, as trustee.

“Wholly Owned Restricted Subsidiary” of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is a Restricted Subsidiary of such Person.

“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a State in the United States or the District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable Law) are owned by such Person or any Wholly Owned Subsidiary of such Person.

Section 1.02         Other Definitions.

Term	Defined in Section
“Acceptable Commitment”	4.10
“Additional Amounts”	4.16
“Affiliate Transaction”	4.11
“Applicable Premium Deficit”	11.01
“Authentication Order”	2.02

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Term	Defined in Section
“basket”	4.17
“Change of Control Offer”	4.15
“Change of Control Payment Date”	4.15
“Covenant Defeasance”	8.03
“deemed year”	13.15
“DTC”	2.03
“Elected Amount”	4.09
“Event of Default”	6.01
“Increased Amount”	4.12
“incur”	4.09
“Initial Lien”	4.12
“Legal Defeasance”	8.02
“Net Proceeds Offer”	4.10
“Net Proceeds Offer Payment Date”	4.10
“Paying Agent”	2.03
“Payor”	4.16
“Permitted Indebtedness”	4.09
“Reference Date”	4.07
“Registrar”	2.03
“Relevant Taxing Jurisdiction”	4.16
“Replacement Assets”	4.10
“Restricted Payment”	4.07
“Reversion Date”	4.20
“Second Commitment”	4.10
“Special Mandatory Redemption”	3.09
“Special Mandatory Redemption Date”	3.09
“Special Mandatory Redemption Event”	3.09
“Surviving Entity”	5.01
“Surviving Guarantor”	10.04
“Surviving Parent”	5.01
“Suspension Period”	4.20
“USA PATRIOT Act”	13.14

Section 1.03         Rules of Construction.

Unless the context otherwise requires:

(1)            a term has the meaning assigned to it;

(2)            an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3)            “or” is not exclusive;

(4)            the words “include,” “including” and other words of similar import mean “include, without limitation” or “including, without limitation,” regardless of whether any reference to “without limitation” or words of similar import is made; and the included items do not limit the scope of the more general terms; and the listed included items are covered whether or not they are within the scope of the more general terms;

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(5)            words in the singular include the plural, and in the plural include the singular;

(6)            “will” shall be interpreted to express a command;

(7)            provisions apply to successive events and transactions; and

(8)            references to sections of or rules under the Securities Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

(9)            all references to Sections or Articles refer to Sections or Articles of this Indenture;

(10)          use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed to include, where appropriate, the other pronouns; and

(11)          “$” refers to U.S. dollars.

Article 2
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 and shall include the Private Placement Legend unless it is removed as contemplated by Section 2.06 hereof. The Notes may have notations, legends or endorsements required by Law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 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 Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

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

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

(d)            Additional Notes. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited, subject to compliance with Sections 2.13 and 4.09 hereof.

Section 2.02      Execution and Authentication.

At least one Officer must sign the Notes for the Company by manual, facsimile signature or electronically imaged signature.

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

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

The Trustee will, upon receipt of a written order of the Company signed by at least one Officer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

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

The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 in aggregate principal amount and any integral multiples of $1,000 in excess thereof.

Section 2.03      Registrar and Paying Agent.

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

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

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The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

Section 2.04      Paying Agent to Hold Money in Trust.

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

Section 2.05      Holder Lists. 

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

Section 2.06      Transfer and Exchange.

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

(1)            the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary;

(2)            the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or

(3)            there has occurred and is continuing a Default or Event of Default with respect to the Notes and DTC requests the issuance of Definitive Notes.

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names, and issued in any approved denominations, as requested by or on behalf of the Depositary to the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the events described in clauses (1), (2) or (3) above and pursuant to clause (c) below. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d) hereof.

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The Company shall be responsible for making calculations called for under the Notes, including but not limited to determination of redemption price, premium, if any, and any additional amounts or other amounts payable on the Notes. The Company will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent verification.

(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 and to the extent required by the Securities Act and any other applicable securities Laws. 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 applicable Restricted Period, transfers of beneficial interests in a 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 an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(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) above, the transferor of such beneficial interest must deliver to the Registrar the applicable certificates prescribed by the succeeding sections and subparagraphs and 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

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(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 (1) above.

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

(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) above and the Registrar receives the following:

(A)            if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver 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 in a Regulation S Global Note, then the transferor must deliver a certificate 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 a IAI Global Note, then the transferor must deliver a certificate 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) above and 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 a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) 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 a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

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and, in each such case set forth in this subparagraph (4), if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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 at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred or exchanged.

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

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

(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 the occurrence of any of the events described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof 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 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F)            if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

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

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

(2)            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 upon the occurrence of any of the events described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof 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 an Unrestricted Definitive Note, a certificate from such holder 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 in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (2), if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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)            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 described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) 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 deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.

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

(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 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

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

(G)            if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in 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 appropriate Restricted Global Note pursuant to Section 2.06(g) hereof.

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(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 an Unrestricted Global Note, a certificate from such Holder 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 an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

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

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

(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 an applicable Unrestricted Global Note.

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

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

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(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, then the transferor must deliver 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, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C)            if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel 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 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 in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (2), if the Company or the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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)            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 a legend in substantially the following form:

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“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF 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 COMPLIANCE WITH REGULATION S, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATION S NOTES:

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BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. BY ITS ACQUISITION OF THIS SECURITY OR ANY INTEREST HEREIN, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES OR WILL CONSTITUTE THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” (WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR REGULATION 29 C.F.R. SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”

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

(2)            Global Note Legend. Each Global Note will bear a legend in substantially the following form (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 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

UNLESS 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 COMPANY 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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(3)            Canadian Legend. In addition to any other legend required by this Indenture, all Notes will bear the following legend:

“IN ACCORDANCE WITH NATIONAL INSTRUMENT 45-102 – RESALE OF SECURITIES, UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES IN CANADA BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (i) THE DATE OF THE DISTRIBUTION OF SUCH NOTES, AND (ii) THE DATE RITCHIE BROS. HOLDINGS INC. BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.”

(g)            Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. 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 will 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 will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(h)            General Provisions Relating to Transfers and Exchanges.

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

(2)            No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.10, 4.15 and 9.04 hereof).

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

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

(5)            Neither the Registrar nor the Company will 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 day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

(B)            to register the transfer of or to exchange any Note (i) selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (ii) that have been tendered and not withdrawn in connection with a Change of Control Offer; or

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(C)            to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

(6)            Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company shall deem and treat the Person in whose name any Note is registered by the Registrar as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

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

(8)            All orders, 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.

(9)            All Notes shall be maintained in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations and may be transferred only in accordance with such provisions.

None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable Law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Definitive Note or 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, to examine the same to determine substantial compliance as to form with the express requirements hereof and to examine the register to determine the owner of such Note.

None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner in a Global Note, a Participant or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, with respect to any ownership interest in a Global Note or with respect to the delivery to any Participant, beneficial owner or other Person (other than the Depositary or its nominee) of any notice (including any notice of redemption) or the payment of any amount (other than the Depositary or its nominee), under or with respect to such Global Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes and this Indenture shall be given or made only to or upon the order of the Holders (which shall be the Depositary or its nominee in the case of the Global Note). The rights of beneficial owners in the Global Note shall be exercised only through the Depositary subject to the Applicable Procedures. The Trustee and the Agents shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants and any beneficial owners. The Trustee and the Agents shall be entitled to deal with the Depositary, and any nominee thereof, that is the Holder of any Global Note for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest and Additional Amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole holder of such Global Note and shall have no obligations to the beneficial owners thereof. None of the Trustee or any Agent shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Note for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions between the Depositary and any Participant or between or among the Depositary, any such Participant and/or any holder or owner of a beneficial interest in such Global Note, or for any transfers of beneficial interests in any such Global Note.

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Section 2.07      Replacement Notes.

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge for its expenses in replacing a Note.

Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.08      Outstanding Notes.

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.

Section 2.09      Treasury Notes.

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.

Section 2.10      Temporary Notes.

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.

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Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

Section 2.11      Cancellation.

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of canceled Notes in accordance with its then customary procedures (subject to the record retention requirements of the Exchange Act). Certification of the disposition of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12      Defaulted Interest.

If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

Section 2.13      Issuance of Additional Notes.

The Company shall be entitled, upon delivery of an Officer’s Certificate, Opinion of Counsel and Authentication Order, to issue Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued on the Issue Date, other than with respect to the date of issuance and issue price and, if applicable, the initial interest accrual date and the initial interest payment date, subject to compliance with ‎Section 4.09 hereof. The Initial Notes and any Additional Notes issued will be treated as a single class for all purposes under this Indenture, provided that if the Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, the Additional Notes will have a separate CUSIP number.

With respect to any Additional Notes, the Company shall set forth in a resolution of its Board of Directors and an Officer’s Certificate, a copy of each which shall be delivered to the Trustee, the following information: (1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture, (2) the issue price, the date of issuance and the CUSIP number of such Additional Notes and (3) that the issuance of such Additional Notes does not contravene ‎Section 4.09 hereof.

Article 3
REDEMPTION AND PREPAYMENT

Section 3.01      Notices to Trustee.

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 10 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:

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

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(2)            the redemption date;

(3)            the principal amount of Notes to be redeemed; and

(4)            the redemption price, if known at the time such notice is given.

If the redemption price is not known at the time such notice is to be given, the redemption price shall be set forth in an Officer’s Certificate delivered to the Trustee no later than two Business Days prior to the redemption date.

Section 3.02      Selection of Notes to Be Redeemed or Purchased.

If less than all of the Notes are to be redeemed at any time, the Trustee will select such Notes for redemption (1) in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the Company, (2) if the Notes are not so listed or such exchange prescribes no method of selection, in compliance with the requirements of DTC, or (3) if the Notes are not so listed or such exchange prescribes no method of selection, and the Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis, by round lot, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided, however, that no Note of $2,000 in aggregate principal amount or less shall be redeemed in part.

Section 3.03      Notice of Redemption.

Except as set forth in Section 3.09, notice of redemption will be sent electronically or mailed by first-class mail at least 10 but not more than 60 days before the redemption date to each Holder at its registered address, except that redemption notices may be 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 8 or 11 hereof.

The notice will identify the Notes to be redeemed and will state:

(1)          the redemption date;

(2)          the redemption price, or manner of calculation thereof if not then known;

(3)          if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued (or transferred by book-entry) upon cancellation of the original Note;

(4)          the name and address of the Paying Agent;

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

(6)          that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

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

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

At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption date (unless a shorter time is agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

Notice of any redemption of the Notes in connection with a corporate transaction (including an Equity Offering, an incurrence of Indebtedness, an amalgamation, consolidation or merger or a Change of Control) may, at the Company’s discretion, be given prior to the completion thereof and any such redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related transaction. 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 Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived by the Company (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 redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.

Section 3.04      Effect of Notice of Redemption.

Once notice of redemption is mailed or sent in accordance with Section 3.03 hereof, except as may be provided in Section 3.03 if any such redemption is subject to any condition precedent, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price.

Section 3.05      Deposit of Redemption or Purchase Price.

Not later than 10:00 a.m. (New York City time) on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or purchased.

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest 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 and on or before the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name the Note is registered at the close of business on such record date, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Company. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company 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 4.01 hereof.

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Section 3.06      Notes Redeemed or Purchased in Part.

Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder (or transfer by book-entry) at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

Section 3.07      Optional Redemption.

(a)            At any time prior to March 15, 2025, the Notes will be redeemable, at the Company’s option, in whole or in part from time to time, upon not less than 10 nor more than 60 days’ written notice, at a price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date).

(b)            In addition, the Company may redeem the Notes at its option, in whole or in part, upon not less than 10 nor more than 60 days’ written notice, at the following redemption prices (expressed as percentages of the principal amount thereof) plus accrued and unpaid interest, if any, to, but excluding, the redemption date if redeemed during the 12-month period commencing on March 15 of the year set forth below:

Year	Percentage
2025		103.3750	%
2026		101.6875	%
2027 and thereafter		100.0000	%

In addition, the Company must pay accrued and unpaid interest on the Notes redeemed to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date).

(c)            At any time, or from time to time, on or prior to March 15, 2026, the Company may, at its option, use an amount of cash up to the Net Cash Proceeds of one or more Equity Offerings to redeem, upon not less than 10 nor more than 60 days’ written notice up to 40% of the principal amount of the Notes (including any Additional Notes) outstanding under this Indenture at a redemption price of 106.750% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date); provided that:

(1)            at least 50% of the principal amount of Notes (including any Additional Notes) outstanding under this Indenture remains outstanding immediately after any such redemption; and

(2)            the Company makes such redemption not more than 90 days after the consummation of any such Equity Offering.

(d)            If, as a result of:

(1)            any amendment to, or change in, the Laws or treaties (or regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction which is announced or becomes effective on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date); or

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(2)            any amendment to, or change in, the existing official written position or the introduction of a written official position regarding the application, interpretation, administration or assessing practices of any such Laws, regulations or rulings of any Relevant Taxing Jurisdiction, or a judicial decision rendered by a court of competent jurisdiction (whether or not made, taken or reached with respect to Parent, the Company or any of the other Guarantors) which is announced on or after, and becomes effective on or after (for the avoidance of doubt, including retroactive implementation with an effective date prior to), the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date),

any Payor has become or will become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or a Note Guarantee, as applicable, Additional Amounts or indemnification payments as described under Section 4.16 with respect to the Relevant Taxing Jurisdiction, which payment the Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) cannot avoid with the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), then the Company may, at its option, redeem all but not less than all of the Notes, upon not more than 60 days’ notice prior to the earliest date on which a Payor would be required to pay such Additional Amounts or indemnification payments, at a redemption price of 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date). The Company will not give any such notice of redemption unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect. Prior to the giving of any notice of redemption described in this Section 3.07(d), the Company will deliver to the Trustee a written opinion of independent legal counsel to the Payor of recognized standing and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld, conditioned or delayed), to the effect that the Payor has or will become obligated to pay such Additional Amounts or indemnification payments as a result of an amendment or change described in this Section 3.07(d).

In addition, prior to the giving of any such notice of redemption, the Company will deliver to the Trustee an Officer’s Certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by the applicable Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) taking reasonable measures available to it; provided that changing the jurisdiction of incorporation or formation of the applicable Payor shall not be considered a reasonable measure.

The Trustee will accept and may rely conclusively on such Officer’s Certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.

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

(f)            Notwithstanding the foregoing, in connection with any Change of Control Offer or Net Proceeds Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such Change of Control Offer or Net Proceeds Offer and the Company, or any third party making a such Change of Control Offer or Net Proceeds Offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, all of the Holders will be deemed to have consented to such Change of Control Offer or Net Proceeds Offer and accordingly, the Company or such third party will then have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such Change of Control Offer or Net Proceeds Offer plus, to the extent not included, accrued and unpaid interest, if any, thereon, to, but excluding, such redemption date.

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Section 3.08      Mandatory Redemption.

Except as described under Section 3.09, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09      Special Mandatory Redemption.

If (i) the Escrow Agent has not received the Officer’s Certificate pursuant to the Escrow Agreement providing for the Escrow Release prior to the Escrow End Date and the Escrow Agent does not receive such Officer’s Certificate on the Escrow End Date or (ii) the Company notifies the Escrow Agent and the Trustee, in writing, that the Company will not pursue the consummation of the Acquisition or that the Merger Agreement has been terminated in accordance with its terms (each of the above, a “Special Mandatory Redemption Event”), then the Escrow Agent shall, without the requirement of notice to or action by the Company, the Trustee or any other person, liquidate and release the Escrowed Property (including investment earnings thereon and proceeds thereof) to the Trustee. The Company shall send or cause to be sent a notice of redemption to the Holders of the Notes and the Trustee shall apply (or cause a paying agent to apply) such proceeds to redeem the Notes (the “Special Mandatory Redemption”) on the third Business Day following the Special Mandatory Redemption Event (the “Special Mandatory Redemption Date”) or as otherwise required by the applicable procedures of DTC, at a redemption price equal to 100% of the issue price of the Notes, plus accrued and unpaid interest from the Issue Date, or the most recent date to which interest has been paid, as the case may be, to, but excluding the Special Mandatory Redemption Date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date). On the Special Mandatory Redemption Date, after deduction of its and the Escrow Agent’s fees and expenses, if any, the Trustee will pay to the Company any Escrowed Property in excess of the amount necessary to affect the Special Mandatory Redemption.

Article 4
COVENANTS

Section 4.01      Payment of Notes.

The Company will pay or cause to be paid the principal of, premium on, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

The Company will pay interest (including post-petition interest in any proceeding or case under any Bankruptcy Law) on overdue principal at the interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding or case under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.

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Section 4.02      Maintenance of Office or Agency.

The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

The Company may also from time to time designate 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 such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.

Section 4.03      Reports to Holders.

(a)            Notwithstanding that Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, Parent will furnish to the Trustee, within 15 days after the time periods specified below:

(1)            within 90 days after the end of each fiscal year, all financial information (including audited financial statements) of Parent that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the annual financial statements by Parent’s independent registered public accounting firm;

(2)            within 45 days after the end of each of the first three fiscal quarters of each fiscal year, all financial information of Parent that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC; and

(3)            promptly after the occurrence of any of the following events (but in no event later than an registrant would be required to report such event on a Form 8-K), all current reports to the extent relating to such event that would be required to be filed with the SEC on Form 8-K or any successor or comparable form (if Parent had been a reporting company under Section 15(d) of the Exchange Act):

(a)            the entry into or termination of material agreements;

(b)            significant acquisitions or dispositions;

(c)            the sale of equity securities;

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(d)            bankruptcy;

(e)            cross-default under direct material financial obligations;

(f)            a change in Parent’s certifying independent auditor;

(g)            the appointment or departure of directors or executive officers;

(h)            non-reliance on previously issued financial statements; and

(i)            change of control transactions,

in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Circular; provided, that the foregoing shall not obligate Parent to (i) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if Parent determines in its good faith judgment that such event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of Parent and its Restricted Subsidiaries taken as a whole or (ii) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to such report.

(b)            Notwithstanding Section 4.03(a), Parent shall not be required to (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained in any report required by clauses (1), (2) and (3) of Section 4.03(a), (ii) provide any information that is not otherwise similar to information currently included in the Offering Circular or (iii) provide the type of information contemplated by Rule 3-16 of Regulation S-X with respect to financial statements of affiliates whose securities collateralize certain securities or Rule 3-10 of Regulation S-X with respect to separate financial statements for Guarantors or any financial statements for unconsolidated subsidiaries or 50% or less owned persons contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each cash any successor provisions; provided that, Parent shall provide the revenues, “EBITDA”, “Adjusted EBITDA”, assets and liabilities of (i) Parent, the Company and the other Guarantors, collectively and (ii) the non-Guarantors, collectively, separately in a manner consistent with the presentation thereof in the Offering Circular, to the extent required in such form. In addition, notwithstanding Section 4.03(a) or the foregoing, Parent will not be required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified in Section 4.03(a) and such information is subsequently filed or furnished, as applicable, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.

(c)            At any time that any of Parent’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary, then the annual and quarterly financial information required by the Section 4.03(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.

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(d)            Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to this Section 4.03, Parent shall also post copies of such information required by this Section 4.03 on a website (which may be nonpublic and may be maintained by Parent or a third party) to which access will be given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or Non-U.S. Persons that certify their status as such to the reasonable satisfaction of Parent), and securities analysts and market making financial institutions that are reasonably satisfactory to Parent.

(e)            The Trustee shall have no obligation to determine if and when Parent’s financial statements or reports are publicity available and accessible electronically. Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including Parent’s compliance with any of its covenants hereunder (as to which the Trustee may rely exclusively on Officer’s Certificates).

(f)            Parent will hold quarterly conference calls for the Holders to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with Parent’s equity investors and analysts). Such conference calls will be following the last day of each fiscal quarter of Parent and not later than 15 Business Days from the time that Parent distributes the financial information as set forth in Section 4.03(a). No fewer than two days prior to the conference call, Parent will issue a press release announcing the time and date of such conference call and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(d).

(g)            To the extent not satisfied by this Section 4.03, Parent shall, for so long as any Notes are outstanding, furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(h)            Notwithstanding anything to the contrary set forth in this Section 4.03, if Parent has furnished or filed the reports described in this Section 4.03 with respect to Parent with the SEC via EDGAR (or any successor reporting system of the SEC), Parent shall be deemed to be in compliance with the provisions of this Section 4.03; provided that the Trustee shall not have any responsibility to determine if any documents have been so filed.

(i)            To the extent that, after taking into account applicable no-action and other interpretative releases, applicable U.S. securities Laws or regulations (including Exchange Act Rule 15c2-11) require the disclosure, provision, availability or filing of information in order for broker-dealers to publish or submit quotations for the Notes, Parent or the Company will disclose, provide, make available or file such information.

Section 4.04      Compliance Certificate.

(a)            The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year ended after the Issue Date, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has complied with this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has complied with this Indenture and no Default or Event of Default has occurred during such period (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).

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(b)            So long as any of the Notes are outstanding, the Company will deliver to the Trustee, within 15 Business Days after an Officer becomes aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

Section 4.05      Taxes.

The Company will pay, and will cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

Section 4.06      Stay, Extension and Usury Laws.

The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury Law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such Law, and covenants that it will not, by resort to any such Law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such Law has been enacted.

Section 4.07      Restricted Payments.

(a)            Parent shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly:

(1)            declare or pay any dividend or make any distribution (other than (A) dividends or distributions payable in Qualified Capital Stock of Parent or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, Parent or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Capital Stock in such class or series of securities) on or in respect of shares of Parent’s Capital Stock to holders of such Capital Stock;

(2)            purchase, redeem or otherwise acquire or retire for value any Capital Stock of Parent or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock (other than Disqualified Capital Stock within 365 days of the Stated Maturity thereof);

(3)            make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, earlier than one year prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than Subordinated Indebtedness held by Parent or any of its Restricted Subsidiaries); or

(4)            make any Investment (other than Permitted Investments)

(each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a “Restricted Payment”), if at the time of such Restricted Payment or immediately after giving effect thereto,

(i)            a Default or an Event of Default shall have occurred and be continuing;

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(ii)            Parent is not able to incur at least $1.00 of additional Indebtedness in compliance with Section 4.09(a); or

(iii)            the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the first day of the fiscal quarter of Parent during which the Issue Date occurs (the amount expended for such purposes, if other than in cash, being the fair market value of such property as determined in good faith by the Board of Directors of Parent or the Company) shall exceed the sum, without duplication, of:

(w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of Parent earned subsequent to the first day of the fiscal quarter of the Company during which the Issue Date occurs and on or prior to the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus

(x) 100% of the aggregate net cash proceeds and the fair market value of readily marketable securities or other property received by Parent from any Person (other than a Subsidiary of Parent) from (i) the issuance and sale subsequent to the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of Parent or (ii) from the issue and sale subsequent to the Issue Date and on or prior to the Reference Date of Disqualified Capital Stock or convertible or exchangeable debt securities of Parent, in the case of this clause (ii), that has been converted into or exchange for Qualified Capital Stock; plus

(y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds and fair market value of readily marketable securities or other property, of any equity contribution received by Parent subsequent to the Issue Date (excluding, in the case of clauses (iii)(x) and (y), any such net cash proceeds to the extent used to (I) redeem the Notes in compliance with Section 3.07(c) or (II) to make a Restricted Payment pursuant to clauses (2) or (3) of the immediately succeeding paragraph); plus

(z) the sum of:

(1) the aggregate amount in cash and fair market value of other property returned on or with respect to Investments (other than Permitted Investments) made subsequent to the Issue Date whether through interest payments, principal payments, dividends, by merger, consolidation amalgamation or other distribution, payment or transfer;

(2) the net cash proceeds received by Parent or any of its Restricted Subsidiaries subsequent to the Issue Date from the disposition of all or any portion of such Investments (other than to Parent or a Subsidiary of Parent); and

(3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (except to the extent the Investment constituted a Permitted Investment), the fair market value of such Subsidiary;

provided, however, that the sum of subclauses (z)(1), (z)(2) and (z)(3) above shall not exceed the aggregate amount of all such Investments made subsequent to the Issue Date; and provided, further, that the issuance of Capital Stock of Parent to provide consideration for the Acquisition will not increase the capacity for Restricted Payments as set forth in this clause (iii); plus (aa) $650.0 million.

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(b)            Notwithstanding the foregoing, the provisions set forth in Section 4.07(a) do not prohibit:

(1)            the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or distribution or giving of the redemption notice, as the case may be, if the dividend, distribution or redemption payment would have been permitted on the date of declaration or giving of the redemption notice;

(2)            if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of Parent, either (i) solely in exchange for shares of Qualified Capital Stock of Parent or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Parent) of shares of Qualified Capital Stock of Parent;

(3)            if no Default or Event of Default shall have occurred and be continuing, the acquisition of any Indebtedness of the Company, Parent or a Guarantor that is subordinate or junior in right of payment to the Notes or such Guarantor’s Note Guarantee, as the case may be, or the acquisition of Disqualified Capital Stock, in each case, either (i) solely in exchange for shares of Qualified Capital Stock of Parent, or (ii) in exchange for, or by conversion into, or through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Parent), of (a) shares of Qualified Capital Stock of Parent or (b) Refinancing Indebtedness;

(4)            if no Default or Event of Default shall have occurred and be continuing, repurchases, redemptions or other acquisitions by Parent of Common Stock of Parent (or options or warrants to purchase such Common Stock) from directors, officers, employees and consultants of Parent or any of its Subsidiaries or their authorized representatives upon the death, disability, retirement or termination of employment of such directors, officers, employees or consultants, in an aggregate amount not to exceed the sum of (x) $5.0 million and (y) the amount of Restricted Payments permitted but not made pursuant to this clause (4) in prior fiscal years; provided that no more than $5.0 million may be carried forward to any succeeding fiscal year; provided, further, however, that such amount in any calendar year may be increased by an amount not to exceed:

(a)            the cash proceeds received by Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Stock of Parent to directors, officers, employees or consultants of Parent or its Restricted Subsidiaries subsequent to the Issue Date (provided that the amount of cash proceeds utilized for any such repurchase, redemption or other acquisition or dividend will not increase the amount available for Restricted Payments under clause (4)(iii) of Section 4.07(a)); plus

(b)            the cash proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries after the Issue Date;

provided that cancellation of Indebtedness owing to Parent or any of its Restricted Subsidiary from any present or former directors, officers, employees or consultants of Parent or any of its Restricted Subsidiaries in connection with a repurchase of Capital Stock of Parent will not be deemed to constitute a Restricted Payment for purposes of this Section 4.07 or any other provision of this Indenture;

(5)            if no Event of Default shall have occurred and be continuing, other Restricted Payments in an amount not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period in any fiscal year; provided that any unused portion of the preceding basket for any fiscal year (commencing with the fiscal year in which the Issue Date occurred) may be carried forward to the succeeding fiscal years;

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(6)            additional Restricted Payments; provided, however, that (i) after giving pro forma effect to any such Restricted Payment, the Consolidated Debt Ratio shall be less than or equal to 3.00 to 1.00 and (ii) no Event of Default shall have occurred and be continuing;

(7)            in the event of a Change of Control, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness of the Company, Parent or any other Guarantor, in each case at a purchase price not greater than 101% of the principal amount of such Subordinated Indebtedness, plus accrued and unpaid interest thereon; provided, however, that prior to, or concurrently with, such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer;

(8)            in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to Section 4.10, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness of the Company, Parent or any other Guarantor, in each case at a purchase price not greater than 100% of the principal amount of such Subordinated Indebtedness, plus accrued and unpaid interest thereon; provided, however, that (A) prior to, or concurrently with, such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an offer with respect to the Notes pursuant to Section 4.10 and has repurchased all Notes validly tendered and not withdrawn in connection with such offer and (B) the aggregate amount of all such payments, purchases, redemptions, defeasances or other acquisitions or retirements of all such Subordinated Indebtedness may not exceed the amount of the Net Cash Proceeds Amount remaining after the Company has complied with Section 4.10(a)(3);

(9)            (a) repurchases of Common Stock deemed to occur upon the exercise of stock options, warrants, rights or other Equity Interests if the Common Stock represents a portion of the exercise price thereof or withholding taxes payable in connection with the exercise thereof and (b) Restricted Payments by Parent or any Restricted Subsidiary of Parent to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of stock options, warrants, rights or other Equity Interests or upon the conversion or exchange of Capital Stock of such Person;

(10)            the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to Parent or a Restricted Subsidiary of Parent by, Unrestricted Subsidiaries;

(11)            (a) any Restricted Payment used to consummate the Transactions and to fund the payment of fees and expenses incurred in connection with the Transactions or owed by Parent or any Restricted Subsidiary of Parent, and any other payments made, including any such payments made to any direct or indirect parent of the Company to enable it to make payments in connection with the consummation of the Transactions, prior to or on or about the Escrow Release Date, in each case to the extent not materially inconsistent with the description of the Acquisition in the Offering Circular and (b) any Restricted Payment made under the Merger Agreement or otherwise in connection with the Transactions;

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(12)            the payment of any dividend or distribution by a Restricted Subsidiary that is a member of a consolidated, combined, or similar group (for this purpose, including a Restricted Subsidiary that is an entity disregarded from any such member for relevant tax purposes), in an amount necessary for the parent of the group filing consolidated, combined, or similar returns with such Restricted Subsidiary to pay taxes with respect to the net income of such Restricted Subsidiary or its Subsidiaries; provided that the amount of such payments in respect of any tax year shall not exceed the amount that such Subsidiaries would have been required to pay in respect of such taxes if such Subsidiaries paid such taxes directly on a separate company basis or as a standalone consolidated, combined, affiliated or unitary tax group; provided, further, that to the extent such dividend or distribution relates to the net income of an Unrestricted Subsidiary, only to the extent cash is received from such Unrestricted Subsidiary for purposes of such dividend or distribution; and

(13)            the declaration and payment of any dividends on, any redemptions or repurchases of, and any payments of cash in lieu of shares upon conversion of, Parent’s Series A preferred stock outstanding as of the Issue Date.

In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with Section 4.07(a)(iii), amounts expended pursuant to Section 4.07(b)(1) shall be included in such calculation.

For purposes of determining compliance with this Section 4.07, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in Section 4.07(b)(1) through (13) above or the criteria of a Permitted Investment, or is entitled to be incurred pursuant to Section 4.07(a), Parent and the Company will be entitled to divide, classify or reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment or portion thereof in any manner that complies with this Section 4.07 and such Restricted Payment will be treated as having been made pursuant to only such clause or clauses, as a Permitted Investment or Section 4.07(a).

Section 4.08      Dividend and Other Payment Restrictions Affecting Guarantors.

(a)            Each of the Company and Parent will not, and will not cause or permit any other Guarantor to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any other Guarantor to:

(1)          pay dividends or make any other distributions on or in respect of its Capital Stock to the Company, Parent or any other Guarantor;

(2)          make loans or advances or to pay any Indebtedness or other obligation owed to the Company, Parent or any other Guarantor; or

(3)          transfer any of its property or assets to the Company, Parent or any other Guarantor.

(b)            The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

(1)          applicable Law, rule, regulation, decree or order;

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(2)          the Notes and the related Note Guarantees, this Indenture and the Escrow Agreement;

(3)          customary subletting and non-assignment provisions of any contract or any lease governing a leasehold interest of Parent , the Company or any other Guarantor;

(4)          any agreement or instrument (including those governing Indebtedness (including Acquired Indebtedness) or Capital Stock) of a Person acquired by Parent, the Company or any other Guarantor as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the properties or assets of the Person, or the Equity Interests of the Person, so acquired;

(5)          contractual encumbrances or restrictions (i) in effect on the Issue Date or (ii) solely with respect to IAA and its subsidiaries, in effect on the Escrow Release Date so long as such encumbrances or restrictions were not entered into in contemplation of the Acquisition;

(6)          the Senior Secured Credit Facilities, this Indenture and any related documentation or an agreement governing other Indebtedness permitted to be incurred under this Indenture; provided that, with respect to any agreement governing such other Indebtedness, the provisions relating to such encumbrance or restriction, taken as a whole, are no less favorable to Parent or the Company in any material respect as determined by the Board of Directors of Parent or the Company, as applicable, in its reasonable and good faith judgment than the provisions contained in the Senior Secured Credit Facilities, the Unsecured Notes Indenture or this Indenture as in effect on the Issue Date;

(7)          restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;

(8)          restrictions and conditions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;

(9)          restrictions imposed by agreements governing obligations of International Restricted Subsidiaries that are Guarantors which are permitted under this Indenture;

(10)          restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

(11)          customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;

(12)          customary restrictions under agreements relating to Cash Pooling Arrangements;

(13)          customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted under this Indenture;

(14)          customary restrictions arising in connection with cash or other deposits in connection with Liens permitted under this Indenture;

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(15)          any document or instruments governing Indebtedness permitted pursuant to clause (13) of the definition of “Permitted Indebtedness”;

(16)          customary provisions restricting assignment of any agreement entered into in the ordinary course of business;

(17)          restrictions imposed by any agreement governing Indebtedness not restricted by covenant described under Section 4.09 so long as the Company shall have determined in good faith that such restrictions will not affect its obligation or ability to make any payments required under this Indenture or the Notes or otherwise perform its obligations hereunder or thereunder; and

(18)          any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or refinancings of those agreements, instruments or obligations referred to in clauses (1) through (14) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreements, taken as a whole, are no less favorable to Parent or the Company in any material respect as determined by the Board of Directors of Parent or the Company, as applicable, in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (1) through (14) above.

Nothing contained in this Section 4.08 shall prevent Parent, the Company or any other Guarantor from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by Section 4.12 or (2) restricting the sale or other disposition of property or assets of Parent, the Company or any other Guarantor that secure Indebtedness of Parent, the Company or any other Guarantor.

For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to Parent, the Company or any other Guarantor to other Indebtedness incurred by Parent, the Company or any other Guarantor shall not be deemed a restriction on the ability to make loans or advances.

Section 4.09      Incurrence of Additional Indebtedness.

(a)            Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including Acquired Indebtedness); provided, however, that, Parent and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if on the date of the incurrence of such Indebtedness, after giving pro forma effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0; provided, further, that any Restricted Subsidiary of Parent that is not or will not, upon such incurrence, become a Guarantor may not incur Indebtedness under this paragraph if, after giving pro forma effect to such incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate principal amount equal to the greater of (A) $110.0 million and (B) 10% of Consolidated EBITDA for the Applicable Measurement Period of Indebtedness of such non-Guarantor Subsidiary would be outstanding under this paragraph at such time.

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(b)            The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Indebtedness”):

(1)            Indebtedness under the Notes issued on the Issue Date (including the related Note Guarantees);

(2)            (a) Indebtedness incurred pursuant to Credit Facilities in an aggregate principal amount at any time outstanding not to exceed the sum of $3,415 million and (b) an additional aggregate principal amount of Consolidated Total Secured Indebtedness in an amount such that, on a pro forma basis after giving effect to the incurrence of such Indebtedness (and application of the net proceeds therefrom), the Consolidated Secured Debt Ratio would be no greater than 3.50 to 1.00;

(3)            (x) Indebtedness represented by the Unsecured Notes, including any guarantee thereof, and (y) Indebtedness of Parent and its Restricted Subsidiaries outstanding on the Issue Date (other than Indebtedness under clause (1) and (2) of this Section 4.09(b)) (including any amendments or replacements thereof that do not increase the principal amount);

(4)            Interest Swap Obligations of Parent or any of its Restricted Subsidiaries covering Indebtedness of Parent or such Restricted Subsidiary; provided, however, that (a) such Interest Swap Obligations are entered into for the purpose of mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by Parent or such Restricted Subsidiary, or changes in the value of securities issued by Parent or such Restricted Subsidiary, and not for purposes of speculation or taking a “market view”;

(5)            Indebtedness under Currency Agreements; provided that in the case of Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase the Indebtedness of Parent and its Restricted Subsidiaries outstanding other than as a result of fluctuations in currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

(6)            Indebtedness of Parent owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary of Parent owing to and held by Parent or any other Restricted Subsidiary of Parent; provided, however, that: (a) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than Parent or a Restricted Subsidiary of Parent, and (b) any sale or other transfer (excluding Permitted Liens) of any such Indebtedness to a Person other than Parent or a Restricted Subsidiary of Parent, shall be deemed, in each case, to be the incurrence of Indebtedness by Parent or such Restricted Subsidiary, as the case may be, not permitted by this clause (6);

(7)            (a) obligations pursuant to any Cash Management Agreement and other Indebtedness in respect of netting services, overdraft protections and similar arrangements, (b) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business and (c) Cash Pooling Arrangements (including for the avoidance of doubt any Indebtedness arising vis a vis the Cash Pooling Arrangements providers and/or between any of Parent and/or Subsidiaries of Parent as a whole by reason of the implementation of such Cash Pooling Arrangements);

(8)            Indebtedness of Parent or any of its Restricted Subsidiaries (a) represented by letters of credit, pledges or deposits for the account of Parent or such Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance, the purchase of goods or other requirements in the ordinary course of business or (b) owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;

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(9)            Indebtedness represented by guarantees by Parent or its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture; provided that, in the case of a guarantee by a Restricted Subsidiary, such Restricted Subsidiary complies with Section 4.18 to the extent applicable;

(10)            Indebtedness of Parent or any of its Restricted Subsidiaries in respect of bid, payment and performance bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal bonds, payment obligations in connection with insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business;

(11)            Indebtedness of Parent or any Restricted Subsidiary consisting of guarantees, earn-outs, incentives, non-competes, consulting, indemnities or other similar arrangements or obligations (contingent or other) in respect of purchase price adjustments in connection with the acquisition (including the Acquisition and related transactions) or disposition of assets;

(12)            Indebtedness of (x) Parent or any Restricted Subsidiary incurred or issued to finance an acquisition or (y) Persons that are acquired by Parent or any Restricted Subsidiary or merged into or amalgamated or consolidated with Parent or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger, amalgamation or consolidation, either: (a) Parent would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant; (b) the Consolidated Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries would not be lower than immediately prior to such acquisition, merger, amalgamation or consolidation; or (c) such Indebtedness constitutes Acquired Indebtedness; provided that, with respect to this clause (c), the only obligors with respect to such Acquired Indebtedness shall be those Persons who were obligors of such Acquired Indebtedness prior to such acquisition, merger, amalgamation or consolidation; provided, further, that any Restricted Subsidiary of Parent (other than the Company) that is not or will not, upon such incurrence, become a Guarantor may not incur Indebtedness under clause (x) of this clause (12) if, after giving pro forma effect to such incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate principal amount equal to $150.0 million of Indebtedness of such non-Guarantor Subsidiary would be outstanding under clause (x) of this clause (12) at such time;

(13)            Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness of Parent and its Restricted Subsidiaries in an aggregate principal amount at any time outstanding, including any Refinancing Indebtedness in respect thereof, not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period;

(14)            Indebtedness of International Restricted Subsidiaries (other than Canadian Restricted Subsidiaries) of Parent in connection with letters of credit and bank guarantees in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $150.0 million and (B) 15% of Consolidated EBITDA for the Applicable Measurement Period;

(15)            Indebtedness of Parent evidenced by commercial paper issued by Parent; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to clause (2) of this Section 4.09(b) and this clause (15) does not exceed the maximum amount of Indebtedness permitted under clause (2) of this Section 4.09(b);

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(16)            Refinancing Indebtedness in respect of Indebtedness described in clauses (1), (2), (3), (4), (5), (12), (14) and (18) of this Section 4.09(b) and this clause (16);

(17)            Indebtedness represented by Secured Foreign Credit Facilities;

(18)            additional unsecured Indebtedness in the form of one or more revolving credit facilities with one or more commercial banks in an aggregate principal amount at any time outstanding not to exceed $200.0 million;

(19)            additional Indebtedness of Parent and the Restricted Subsidiaries in an aggregate principal amount at any time outstanding, including any Refinancing Indebtedness in respect thereof, not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period; and

(20)            Indebtedness incurred pursuant to a Receivables Facility.

For purposes of determining compliance with this Section 4.09: (a) in determining any particular amount of Indebtedness under this Section 4.09, guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included; (b) in the event that all or a portion of an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (20) of Section 4.09(b) or is permitted to be incurred pursuant to Section 4.09(a), the Company shall, in its sole discretion, divide, classify and reclassify such item or portion of such item of Indebtedness in any manner that complies with this Section 4.09, including under Section 4.09(a) if such reclassified Indebtedness could then be incurred under such test, except that Indebtedness outstanding under the Senior Secured Credit Facilities on the Issue Date or the Escrow Release Date shall be deemed to have been incurred on the Issue Date or the Escrow Release Date under Section 4.09(b)(2) and may not be reclassified; (c) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of this Section 4.09; (d) in connection with Parent, the Company or a Restricted Subsidiary of Parent’s entry into an instrument containing a binding commitment in respect of any revolving Indebtedness, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Indebtedness which is to be incurred (or any commitment in respect thereof) or secured by a Lien, as the case may be, as being incurred as of such election date, and (i) any subsequent incurrence of Indebtedness under such commitment (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Indebtedness or an additional Lien at such subsequent time, (ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of all subsequent calculations of the Consolidated Debt Ratio and the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding; and (e) the principal amount of Indebtedness outstanding under any clause of this covenant shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness.

If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Parent as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this Section 4.09, the Company shall be in default of this Section 4.09).

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For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt, and the amount of such debt will not be deemed to change as a result of fluctuations in currency exchange rates after such date of incurrence or commitment; provided, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing.

Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that Parent or a Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

(c)            The Company and Parent will not, and will not permit any other Guarantor to, directly or indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness) is expressly subordinated in right of payment to any other Indebtedness of the Company, Parent or such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Notes or the applicable Note Guarantee, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company, Parent or such Guarantor, as the case may be. For purposes of the foregoing and all other purposes under this Indenture, no Indebtedness will be deemed to be subordinated or junior in right of payment to any other Indebtedness of the Company, Parent or any other Guarantor solely by virtue of such Indebtedness being unsecured or by virtue of the fact that the holders of such Indebtedness have entered into one or more intercreditor agreements or similar arrangements giving one or more of such holders priority over the other holders in the collateral securing such Indebtedness.

Section 4.10      Asset Sales.

(a)            Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

(1)            Parent or the applicable Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at or prior to the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s or Parent’s Board of Directors);

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(2)            at least 75% of the consideration received by Parent or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at or prior to the time of such disposition. For purposes of this clause (2), each of the following shall be deemed to be cash:

(A)            (i) any liabilities, as shown on the most recent consolidated balance sheet (or in the notes thereto) of Parent or any Restricted Subsidiary (or would be shown on such consolidated balance sheet (or in the notes thereto) as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee or (ii) any Guarantees of Indebtedness of Persons other than Parent or any Restricted Subsidiary, in each case, that are assumed by the person acquiring such assets to the extent that Parent and its Restricted Subsidiaries have no further liability with respect to such liabilities;

(B)            any securities, notes or other obligations received by Parent or any such Restricted Subsidiary from such transferee that are converted by Parent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days after receipt; and

(C)            any Designated Non-Cash Consideration received by Parent or its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, in the aggregate, not to exceed the greater of $25.0 million and 1.0% of Consolidated Total Assets at the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value;

(3)            upon the consummation of an Asset Sale, Parent shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 540 days of receipt thereof either:

(A)            to repay (i) if the assets or property disposed of in the Asset Sale were not Collateral, Indebtedness of a Restricted Subsidiary that is not a Guarantor, (ii) the Notes or (iii) other Parity Lien Indebtedness and, if the assets or property disposed of in the Asset Sale were not Collateral, Pari Passu Indebtedness, including the Unsecured Notes (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (provided that if the Company, Parent or any other Guarantor shall so reduce Obligations under such other Parity Lien Indebtedness or Pari Passu Indebtedness under this clause (iii) (which, for the avoidance of doubt, does not include Indebtedness described in clauses (i) and (ii) even if such Indebtedness may also constitute Parity Lien Indebtedness or Pari Passu Indebtedness), the Company or Parent will equally and ratably reduce the Notes either, as the Company or Parent, as applicable, shall elect in its sole discretion, as provided under Section 3.07 through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase a pro rata principal amount of Notes at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any);

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(B)            to make an investment in, including in properties or assets that replace the properties and assets that were the subject of such Asset Sale or in properties or assets (including Capital Stock) that will be used or are useful, in the good faith judgment of the Board of Directors of the Company or Parent, in, the business of Parent and its Restricted Subsidiaries as they are engaged in on the Issue Date or the Escrow Release Date or in businesses reasonably related, incidental, synergistic, ancillary or complementary thereto (“Replacement Assets”); provided that, in the case of this clause (B), a binding commitment within 540 days of the date of the receipt of such Net Cash Proceeds shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so long as Parent or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, Parent or such other Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Net Proceeds Offer Amount if not otherwise applied as provided above within 540 days of the receipt of such Net Cash Proceeds; or

(C)            a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).

(b)            Pending the final application of any such Net Cash Proceeds, Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(a), if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) of Section 4.10(a) within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company, Parent or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Parity Lien Indebtedness or Pari Passu Indebtedness, to holders of such Parity Lien Indebtedness or Pari Passu Indebtedness, as applicable, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of any such Parity Lien Indebtedness or Pari Passu Indebtedness, as applicable) on a pro rata basis based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) of the Notes and Parity Lien Indebtedness or Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum amount (or accreted value, as applicable) of Notes and Parity Lien Indebtedness or Pari Passu Indebtedness, as applicable, that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and Parity Lien Indebtedness or Pari Passu Indebtedness, as applicable, to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by Parent or any Restricted Subsidiary of Parent, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.

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(c)            The Company may make a Net Proceeds Offer at any time and from time to time in advance of its obligation to make a Net Proceeds Offer pursuant to Section 4.10(b). The Company may also defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $50.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $50.0 million, shall be applied as required pursuant to this paragraph). Upon completion of each Net Proceeds Offer, the amount of unutilized Net Proceeds Offer Amount will be reset at zero.

(d)            [RESERVED].

(e)            Notwithstanding Sections 4.10(a) and 4.10(b), Parent and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such sections to the extent that:

(1)            at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and

(2)            such Asset Sale is for Fair Market Value; provided that any consideration not constituting Replacement Assets received by Parent or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and 4.10(b).

(f)            Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the date triggering the Company’s obligation to make such Net Proceeds Offer, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the pro rata portion of the Net Proceeds Offer Amount applicable to the Notes, the tendered Notes will be purchased on a pro rata basis (based on amounts tendered) subject to the minimum denominations of the Notes.

(g)            The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities Laws and regulations thereunder to the extent such Laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities Laws or regulations conflict with this Section 4.10, the Company shall comply with the applicable securities Laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.

Section 4.11      Transactions with Affiliates.

(a)            Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates involving aggregate value in excess of $10.0 million (each an “Affiliate Transaction”), other than:

(1)            Affiliate Transactions permitted under Section 4.11(b); and

(2)            Affiliate Transactions on terms, taken as a whole, that are no less favorable to Parent or the applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Parent or such Restricted Subsidiary.

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If any such Affiliate Transaction (or a series of related Affiliate Transactions which are similar or part of a common plan) (x) involves aggregate payments or other property with a fair market value in excess of $25.0 million, Parent or such Restricted Subsidiary, as the case may be, shall file with the Trustee an Officer’s Certificate certifying that such Affiliate Transaction complies with this covenant and (y) involves aggregate payments or other property with a fair market value in excess of $50.0 million, Parent or such Restricted Subsidiary, as the case may be, shall file with the Trustee a resolution of the Board of Directors of Parent or such Restricted Subsidiary, as the case may be, set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of Parent or such Restricted Subsidiary.

(b)            The restrictions set forth in Section 4.11(a) shall not apply to:

(1)            indemnification, employment, consultancy, advisory, services or separation agreements or arrangements and benefit plans or arrangements and any transactions contemplated by any of the foregoing, including the payment of compensation, fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses, in each case, in respect of or provided on behalf of, current or former directors, officers, consultants or employees of Parent or any Restricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such directors, officers or employees) as determined in good faith by Parent’s or the Company’s Board of Directors or senior management;

(2)            transactions exclusively between or among Parent and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries (including any entity that becomes a Restricted Subsidiary of Parent as a result of such transaction); provided such transactions are not otherwise prohibited by this Indenture;

(3)            (A) any agreement or arrangement as in effect as of the Issue Date (or transactions pursuant thereto), (B) any other agreements or arrangements pursuant to or in connection with the Transactions or (C) any amendment, modification or supplement to the agreements referenced in clause (A) or (B) above or any replacement thereof, so long as the terms of such agreement or arrangement, as so amended, modified, supplemented or replaced, are not more disadvantageous to the Holders when taken as a whole in any material respect compared to the applicable agreements or arrangements as in effect on the Issue Date or as described in the Offering Circular, as applicable, as determined in good faith by Parent or the Company;

(4)            Restricted Payments (or transfers or issuances that would constitute Restricted Payments but for the exclusions from the definition thereof) or Permitted Investments not prohibited by this Indenture;

(5)            transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to Parent or the applicable Restricted Subsidiary in the reasonable determination of the Board of Directors or the senior management of Parent or the applicable Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;

(6)            issuances or sales of Capital Stock (other than Disqualified Capital Stock) of Parent or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of Parent or any Restricted Subsidiary;

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(7)            transactions in which Parent or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to Parent or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 4.11(a)(2);

(8)            payments to or the receipt of payments from, and the entry into and the consummation of transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Parent and the Restricted Subsidiaries in such joint venture) in the ordinary course of business to the extent otherwise permitted by this Indenture, so long as such payments or transactions are on terms that are not materially less favorable to Parent or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction;

(9)            the Transactions, in each case as disclosed in the Offering Circular, and the payment of all fees, expenses, bonuses and awards related thereto;

(10)            transactions with a Person that is an Affiliate of Parent solely because Parent or one of its Restricted Subsidiaries owns an equity interest in such Person;

(11)            the pledge of Equity Interests of Unrestricted Subsidiaries or joint ventures to support the Indebtedness thereof;

(12)            transactions between Parent or any Restricted Subsidiary of Parent and any Person, a director of which is also a director of Parent or the Company; provided, that such director abstains from voting as a director of Parent or the Company on any matter involving such other Person;

(13)            transactions with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;

(14)            any incurrence of Indebtedness permitted by Section 4.09;

(15)            transactions undertaken for the purpose of improving the consolidated tax efficiency of Parent or its Subsidiaries as determined in good faith by Parent; and

(16)            Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions.

Section 4.12      Liens.

(a)            Parent will not, and will not cause or permit the Company or any other Guarantor to, directly or indirectly, create, incur or assume any Liens of any kind against or upon any property or assets of Parent, the Company or any such Guarantor, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom (such Lien, the “Initial Lien”), securing Indebtedness of Parent, the Company or a Guarantor, unless:

(1)            in the case of Initial Liens on any Collateral, (i) such Initial Liens are expressly junior lien in priority or (ii) such Lien is a Permitted Lien; and

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(2)            in the case of any Initial Lien on any asset or property that is not Collateral, (i) the Notes or the Note Guarantees are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien secures any Subordinated Indebtedness) the Obligations secured by such Initial Lien or (ii) such Initial Lien is a Permitted Lien.

(b)            Any Lien created for the benefit of the Holders of the Notes pursuant to Section 4.12(a)(2) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien to which it relates.

(c)            For purposes of determining compliance with this Section 4.12, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in clauses (1) through (40) of the definition of “Permitted Liens” or pursuant to Section 4.12(a) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness meets the criteria of one or more of the categories of permitted Liens described in clauses (1) through (40) of the definition of “Permitted Liens” or pursuant to Section 4.12(a), the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such Lien or such item of Indebtedness secured by such Lien in one of the clauses of the definition of “Permitted Liens” and such Lien securing such item of Indebtedness will be treated as being incurred or existing pursuant to only one of such clauses or pursuant to Section 4.12(a).

With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in subclause (7) of the definition of “Indebtedness.”

Section 4.13      [RESERVED].

Section 4.14      Corporate Existence.

Subject to Article 5 hereof, the Company shall do or cause to be done all things reasonably necessary to preserve and keep in full force and effect:

(1)            its corporate existence in accordance with its organizational documents (as the same may be amended from time to time); and

(2)            the rights (charter and statutory) of the Company;

provided, however, that the Company shall not be required to preserve any such right if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole.

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Section 4.15      Offer to Repurchase Upon Change of Control.

(a)            Upon the occurrence of a Change of Control, the Company will offer to purchase all or a portion of such Holder’s Notes pursuant to the offer described below (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase.

Within 30 days following the date upon which the Change of Control occurred, the Company shall send a written notice to each Holder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state:

(1)            that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;

(2)            the purchase price and the purchase date, which (unless otherwise required by Law) shall be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”);

(3)            that any Note not tendered will continue to accrue interest in accordance with this Indenture;

(4)            that, unless the Company 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 after the Change of Control Payment Date;

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

(6)            that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and

(7)            that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities Laws and regulations thereunder to the extent such Laws and regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities Laws or regulations conflict with the provisions of this Section 4.15, the Company will comply with the applicable securities Laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.

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(b)            On the Change of Control Payment Date, the Company will, to the extent lawful:

(1)            accept for payment all Notes or portions of Notes properly tendered and not properly withdrawn pursuant to the Change of Control Offer;

(2)            deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered and not properly withdrawn; and

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

The Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee will 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 new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c)            Notwithstanding anything to the contrary in this Section 4.15, the Company will 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 4.15 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer, or (2) a notice of redemption of all outstanding Notes has been given pursuant to Section 3.07 hereof, 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.

(d)            Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. In such a case, the related notice shall describe such condition, and if applicable, shall state that, in the Company’s discretion, the purchase date may be delayed until such time as such condition shall be satisfied, or such purchase may not occur and such notice may be rescinded in the event that such condition shall not have been satisfied by the purchase date, or by the purchase date as so delayed.

Section 4.16      Additional Amounts.

(a)            All payments made by or on behalf of any successor to the Company that is organized or incorporated in a jurisdiction outside the United States or any Guarantor (each a “Payor”) under or with respect to the Notes or any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any Taxes, unless such Payor is required to withhold or deduct an amount for, or on account of, Taxes by Law. If a Payor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is incorporated, organized, resident for tax purposes or carrying on a business for tax purposes or from or through which such Payor or its respective agents makes any payment on the Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the Notes or any Note Guarantee, including payments of principal, redemption price, purchase price, interest or premium, such Payor, subject to the exceptions stated below, will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by each Holder or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.

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(b)            A Payor will not, however, pay Additional Amounts to a Holder or Beneficial Holder with respect to:

(1)            any United States withholding Taxes imposed, withheld, or deducted on any payment on or in respect of the Notes or any Note Guarantee;

(2)            Taxes giving rise to such Additional Amounts that would not have been imposed, withheld or deducted but for the existence of any present or former connection between such Holder or Beneficial Holder (or between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or person in possession of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, a trust, a limited liability company, a partnership, a corporation or other entity) and the Relevant Taxing Jurisdiction in which such Taxes are imposed (including being or having been, or treated as, a citizen, domiciliary, resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, holding or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee);

(3)            Taxes giving rise to such Additional Amounts that would not have been imposed, withheld or deducted but for the failure of such Holder or Beneficial Holder, to the extent such Holder or Beneficial Holder is legally eligible to do so, to comply with any written request, made to that Holder or Beneficial Holder in writing at least 45 calendar days before any such withholding or deduction would be payable, by the Payor to satisfy any certification, identification, information, documentation or other reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, which are required by applicable Law, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, if applicable, a certification that the Holder or Beneficial Holder is not resident in the Relevant Taxing Jurisdiction);

(4)            any estate, inheritance, gift, value added, goods and services, harmonized sales, sales, transfer, capital gains, personal property or any similar Taxes or any excise tax imposed on the transfer of the Notes;

(5)            any Taxes that are imposed, withheld or deducted with respect to any payment on a Note or any Note Guarantee to any Holder who is a fiduciary, partnership, limited liability company or other fiscally transparent entity or person other than the sole Beneficial Owner of such payment and to the extent that no Additional Amounts would have been payable had the Beneficial Owner of the applicable Note been the holder of such Note;

(6)            Taxes imposed on, or deducted or withheld from, payments in respect of the Notes or any Note Guarantee if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes or Note Guarantee been presented for payment (where presentation is required) within 30 calendar days after the date on which such payments or such Notes or Note Guarantee became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes or Note Guarantee been presented on the last day of such 30-calendar day period);

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(7)            Taxes giving rise to such Additional Amounts that would not have been imposed but for the presentation of any Note or any Note Guarantee for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the applicable Note or Note Guarantee to another paying agent;

(8)            any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Note Guarantee;

(9)            any Taxes imposed, withheld or deducted under FATCA; or

(10)            any combination of the foregoing clauses (1) through (9).

(c)            At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders and/or Beneficial Holders on the payment date. The Trustee may rely conclusively on such Officer’s Certificate as conclusive proof that such payments are necessary. The Payor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.

(d)            The Payors will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provision, (other than Taxes described in Sections 4.16(b)(1) through (7) or Section 4.16(b)(9) or Taxes arising by reason of a transfer of a Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to the Notes or any Note Guarantee.

(e)            In addition, the Payor will pay and indemnify the Holder or Beneficial Holder for any present or future stamp, issue, registration, transfer, court, documentation, excise, property or other similar Taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction (and, in the case of enforcement, any jurisdiction) at any time in respect of the execution, issuance, registration, delivery or enforcement of the Notes, any Note Guarantee or any other document or instrument referred to thereunder, or the receipt of any payments with respect thereto (limited, solely in the case of Taxes, charges or duties attributable to the receipt of any payments with respect thereto, to any such Taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded under Sections 4.16(b)(1) through (7) or Section 4.16(b)(9) or any combination thereof).

(f)            The Payor will make all withholdings and deductions required by Law and will remit the full amount deducted or withheld to the applicable Taxing Authority in accordance with applicable Law. Upon request, the Payor will provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld.  Upon request, the Trustee will make available to Holders copies of those receipts or other documentation, as the case may be.  The Trustee will not be responsible for ensuring that the withholding and deduction of any amount has been properly made. Except as specifically provided above, no Payor shall be required to make a payment with respect to any Tax imposed by any government or any political subdivision or Taxing Authority of or in any government or political subdivision.

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(g)            The obligations described under this Section 4.16 will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or Beneficial Holder of its Notes, and will apply (reflecting the applicable necessary changes) to any successor Person to any Payor and to any jurisdiction in which such successor is incorporated, organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents or any department or political subdivision thereof.

Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest, redemption price, purchase price or any other amount payable under or with respect to any Note or Note Guarantee, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.

Section 4.17      Limited Condition Transactions; Financial Calculations.

When calculating the availability under any threshold based on a dollar amount, percentage of Consolidated Total Assets or other financial measure (a “basket”) or ratio under this Indenture, in each case, in connection with a Limited Condition Transaction, the date of determination of such basket or ratio and of any requirement that there be no Default or Event of Default may, at the option of Parent, be the date the definitive agreement(s) for such Limited Condition Transaction is entered into. Any such ratio or basket shall be calculated on a pro forma basis, including with such adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definitions of Consolidated Fixed Charge Coverage Ratio or Consolidated Total Assets, after giving effect to such Limited Condition Transaction and other transactions related thereto (including any incurrence or issuance of Indebtedness or preferred stock and the use of proceeds thereof) as if they had been consummated at the beginning of the applicable period (in the case of Consolidated EBITDA), as of the date of determination and at the end of the applicable period (in the case of Consolidated Total Assets) for purposes of determining the ability to consummate any such Limited Condition Transaction and any such related transactions; provided that if Parent elects to make such determination as of the date of such definitive agreement(s), then (i) if any of such ratios are no longer complied with or baskets are exceeded as a result of fluctuations in such ratio or basket (including due to fluctuations in Consolidated EBITDA, Consolidated Net Income or Consolidated Total Assets of Parent or the target company) subsequent to such date of determination and at or prior to the consummation of the relevant Limited Condition Transaction and any such related transactions, such ratios or baskets will not be deemed to have been no longer complied with or exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction and such related transactions are permitted under this Indenture, (ii) such ratios or baskets shall not be tested at the time of consummation of such Limited Condition Transaction and such related transactions, and (iii) during the period on and following the date of any such election by Parent with respect to a given Limited Condition Transaction and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement(s) for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any unrelated subsequent transaction (including the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Parent, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary) is permitted under this Indenture, any applicable ratio or basket shall be required to be satisfied (i) on a pro forma basis as set forth above, assuming such Limited Condition Transaction and other related transactions (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other related transactions (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.

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Section 4.18      Additional Subsidiary Note Guarantees.

If any existing or future Restricted Subsidiary of Parent shall Guarantee any Indebtedness of Parent, the Company or any other Guarantor under (i) a Credit Facility or (ii) Capital Markets Indebtedness, in each case, in an aggregate principal amount with respect to clauses (i) and (ii) exceeding $100.0 million, then Parent and the Company shall, within 30 days of such event (or such longer period as agreed by the administrative agent under the Senior Secured Credit Facilities) cause such Restricted Subsidiary to:

(1)            execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and this Indenture on the terms set forth in this Indenture;

(2)            deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel that contains the statements set forth in Section 13.05 and that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and, only with respect to such Opinion of Counsel, that such supplemental indenture constitutes a legal, valid, binding and enforceable obligation of such Restricted Subsidiary; and

(3)            execute and deliver to the Notes Collateral Agent joinder agreements in the form set forth in the applicable Collateral Document or other similar agreements in substantially the form delivered under the Senior Secured Credit Facilities with respect to the Collateral Documents and take all actions required thereunder to perfect the Liens created thereunder.

Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture until such Restricted Subsidiary is released from its Note Guarantee as provided in this Indenture.

The form of such supplemental indenture is attached as Exhibit E hereto.

Section 4.19      Designation of Restricted and Unrestricted Subsidiaries.

Parent or the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of “Permitted Investments,” as determined by Parent or the Company. The designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.

Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant.

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Parent or the Company may at any time redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary of Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by Parent shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Section 4.20      Changes in Covenants When Notes Rated Investment Grade.

Beginning on the date following the Issue Date that:

(1)            the Notes have an Investment Grade Rating; and

(2)            no Default or Event of Default shall have occurred and be continuing,

and ending on the date (the “Reversion Date”) that either Rating Agency ceases to have an Investment Grade Rating on the Notes (such period of time, the “Suspension Period”), the following Sections of this Indenture will no longer be applicable to the Notes:

(1)            Section 4.09 (Incurrence of Additional Indebtedness);

(2)            Section 4.07 (Restricted Payments);

(3)            Section 4.10 (Asset Sales);

(4)            Section 4.08 (Dividend and Other Payment Restrictions Affecting Guarantors);

(5)            Section 4.11 (Limitations on Transactions with Affiliates); and

(6)            Section 5.01(a)(2) (Merger, Consolidation and Sale of Assets).

During a Suspension Period, the Company’s or Parent’s Board of Directors may not designate any of Parent’s Subsidiaries as Unrestricted Subsidiaries.

On the Reversion Date, all Indebtedness incurred during the Suspension Period will be classified to have been incurred pursuant to and permitted under Section 4.09(a) or one of the clauses set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be incurred thereunder as of the Reversion Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent any Indebtedness would not be permitted to be incurred pursuant to Section 4.09(a) or any of the clauses set forth in Section 4.09(b), such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified as Permitted Indebtedness under Section 4.09(b)(3) and permitted to be refinanced under Section 4.09(b)(16).

Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 4.07 will be made as though Section 4.07 had been in effect during the entire period of time after the Issue Date and prior to, but not during, the Suspension Period and, accordingly, all Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under Section 4.07(a)(iii). In addition, for purposes of Section 4.11, all Affiliate Transactions entered into by Parent or any of its Restricted Subsidiaries with an Affiliate of Parent during the applicable Suspension Period prior to such Reversion Date will be deemed to have been entered into on or prior to the Issue Date, and for purposes of Section 4.08, all contracts entered into during the applicable Suspension Period prior to such Reversion Date that contain any of the restrictions contemplated by such covenant will be deemed to have been existing on the Issue Date. For purposes of Section 4.10, on the Reversion Date, the unutilized Net Cash Proceeds amount will be reset to zero.

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Notwithstanding the fact that covenants suspended during a Suspension Period may be reinstated, (1) no Default or Event of Default or breach of any kind will be deemed to have occurred, and none of Parent, the Company or any of Parent’s Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period or any actions taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to comply with such covenants during the Suspension Period or at the time such covenants are reinstated and (2) following a Reversion Date, Parent, the Company and each of Parent’s Restricted Subsidiaries will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.

The Company shall give the Trustee written notice of the start of any Suspension Period and in any event not later than five (5) Business Days after such Suspension Period has begun. The Company shall give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date.

Article 5
SUCCESSORS

Section 5.01      Merger, Consolidation and Sale of Assets.

(a)            Parent will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of Parent to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of Parent’s assets (determined on a consolidated basis for Parent and Parent’s Restricted Subsidiaries), whether as an entirety or substantially as an entirety, to any Person unless:

(1)            either:

(A)            Parent shall be the surviving or continuing corporation; or

(B)            the Person (if other than Parent) formed by such consolidation or into which Parent is amalgamated, merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of Parent and of Parent’s Restricted Subsidiaries substantially as an entirety (the “Surviving Parent”):

(i)            shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia; and

(ii)            shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee and the Surviving Entity will take such action as may be reasonably necessary or required to cause all of the obligations of Parent on its Guarantee and the Collateral Documents to continue to be in effect and Parent shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable Law to preserve and protect the Lien on the Collateral owned by Parent;

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(2)            immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(ii) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), Parent or such Surviving Parent, as the case may be, (a) would be able to incur at least $1.00 of additional Indebtedness pursuant to the Section 4.09(a) or (b) the Consolidated Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries would not be lower than it was immediately prior to such transaction;

(3)            immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(ii) above, if applicable (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;

(4)            Parent or the Surviving Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied;

(5)            to the extent any property or assets of the Surviving Parent, or the Person that is merged, amalgamated or consolidated with or into the Surviving Parent, are property or assets of the type that would constitute Collateral under the Collateral Documents or the Pari Passu Intercreditor Agreement, the Surviving Parent will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement in the manner and to the extent required by this Indenture or any of the Collateral Documents or the Pari Passu Intercreditor Agreement, and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement;

(6)            the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Surviving Parent shall (a) continue to constitute Collateral under this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the holders of the Notes and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted under the covenant described above under Section 4.12; and

(7)            the Surviving Parent shall become a party to the Pari Passu Intercreditor Agreement by joinder or supplement.

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(b)            The Company will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or into any Person unless:

(1)            either:

(A)            the Company shall be the surviving or continuing corporation; or

(B)            the Person (if other than the Company) formed by such consolidation or into which the Company is amalgamated or merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”):

(i)            shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union; provided that in the case where the Surviving Entity is not a corporation, a co-obligor of the Notes is a corporation shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union; and

(ii)            shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, this Indenture, the Pari Passu Intercreditor Agreement and the Collateral Documents on the part of the Company to be performed or observed;

(iii)            immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(b)(1)(B)(ii) above, if applicable (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;

(2)            to the extent any property or assets of the Surviving Entity, or the Person that is merged, amalgamated or consolidated with or into the Surviving Entity, are property or assets of the type that would constitute Collateral under the Collateral Documents or the Pari Passu Intercreditor Agreement, the Surviving Entity will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the notes pursuant to this Indenture, the Collateral Documents and the Pari Pass Intercreditor Agreement in the manner and to the extent required by this Indenture or any of the Collateral Documents or Pari Passu Intercreditor Agreement and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement;

(3)            the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Collateral Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the holders of the Notes and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted under the covenant described above under Section 4.12;

(4)            the Surviving Entity shall become a party to the Pari Passu Intercreditor Agreement by joinder as set forth in the Pari Passu Intercreditor Agreement or supplement; and

(5)            the Company or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

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For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of Parent (other than the Company), the Capital Stock of which constitutes all or substantially all of the properties and assets of Parent or the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of Parent or the Company.

Upon any amalgamation, consolidation, combination or merger or any transfer of all or substantially all of the assets of Parent or the Company in accordance with Section 5.01(a), in which Parent or the Company, as applicable, is not the continuing corporation, the successor Person formed by such consolidation or into which Parent or the Company is amalgamated or merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, Parent or the Company, as applicable, under this Indenture and the Notes with the same effect as if such surviving entity had been named as such and all financial information and reports required by this Indenture shall be provided by and for such surviving entity.

Clause (a) of the above covenant will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and the Restricted Subsidiaries (including the Company). Clause (b) of the above covenant will not apply to any merger or consolidation of the Company (x) with or into Parent or one of its Restricted Subsidiaries for any purpose so long as the Surviving Entity becomes a primary obligor of the Notes or (y) with or into an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction so long as the Surviving Entity becomes a primary obligor of the Notes; provided, however, if such Person is not a corporation, a co-obligor of the Notes is a corporation organized or existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union.

Section 5.02      Successor Corporation Substituted.

Upon any amalgamation, consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is amalgamated, merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be released and discharged of all obligations and covenants under this Indenture and the Notes; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, premium on, if any, and interest, if any, on, the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof.

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Article 6
DEFAULTS AND REMEDIES

Section 6.01      Events of Default.

(a)            Each of the following is an “Event of Default”:

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

(2)            the failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer and the failure to make a payment upon a required redemption as described in Section 3.09) on the date specified for such payment in the applicable offer to purchase;

(3)            a default in the observance or performance of any other covenants or agreements which default continues for a period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except, in the case of a default with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement);

(4)            the failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of Parent or any Restricted Subsidiary of Parent (other than Indebtedness owing to Parent or any Restricted Subsidiary), including the Notes, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by Parent or such Restricted Subsidiary of notice of any such acceleration), including the Notes, if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness, including the Notes, in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 20-day period described above has passed), aggregates $75.0 million or more at any time;

(5)            one or more final judgments in an aggregate amount of $75.0 million or more (net of any amounts which are covered by enforceable insurance policies issued by solvent carriers, to the extent such coverage has not been denied) shall have been rendered against Parent or any of its Significant Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable;

(6)            Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:

(A)            commences a voluntary case or proceeding,

(B)            consents to the entry of an order for relief against it in an involuntary case or proceeding,

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(C)            consents to the appointment of a trustee, interim receiver, receiver, receiver and manager, liquidator, administrator, custodian, sequestrator, agent or other similar official of it or for all or substantially all of its property,

(D)            makes a general assignment for the benefit of its creditors, or

(E)            generally is not paying its debts as they become due;

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

(A)            is for relief against Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding;

(B)            appoints a custodian of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary; or

(C)            orders the liquidation or winding up of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary;

and the order or decree remains unstayed and in effect for 60 consecutive days;

(8)            any Note Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Note Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Note Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Note Guarantee (other than by reason of release of a Guarantor in accordance with the terms of this Indenture);

(9)            (x) any material provision of any Collateral Document at any time after its execution and delivery, ceases to be in full force and effect for any reason other than in accordance with the terms of this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement, (y) Parent, the Company or any other Guarantor contests the validity or enforceability of this Indenture or any Collateral Document; or (z) Parent, the Company or any other Guarantor denies in writing that it has any further liability under this Indenture or any Collateral Document, other than in accordance with the terms of this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement; or

(10)            any Lien purported to be created under any Collateral Document shall cease to be a valid Lien on any material portion of the Collateral except (A) to the extent that any such Lien is not required to be maintained pursuant to this Indenture and the Collateral Documents, (B) to the extent such failure results from the failure of the Notes Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or to file UCC continuation or PPSA financing change statements, (C) to the extent such deficiency arose through no fault of Parent, the Company or any other Guarantor and such deficiency is corrected with reasonable diligence promptly upon the Company obtaining knowledge thereof or (D) to the extent any such failure results from acts or omissions of any secured party or from the application of applicable Law.

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(b)            The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes unless a written notice of such Default or Event of Default shall have been given to a Responsible Officer of the Trustee by Parent, the Company or any Holder.

Section 6.02      Acceleration.

(a)            If an Event of Default (other than an Event of Default specified in Section 6.01(a)(6) or 6.01(a)(7) with respect to Parent or the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes may declare the principal of and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Company and the Trustee specifying the applicable Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.

(b)            If an Event of Default specified in Section 6.01(a)(6) or 6.01(a)(7) with respect to Parent or the Company occurs and is continuing, then all unpaid principal of, and premium, if any, plus accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

(c)            At any time after a declaration of acceleration with respect to the Notes as described in Section 6.02(a) or 6.02(b), the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and cancel such declaration and its consequences:

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

(2)            if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;

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

(4)            if the Company has paid the Trustee compensation and reimbursed the Trustee for its expenses, disbursements and advances; and

(5)            in the event of the cure or waiver of an Event of Default of the type described in Section 6.01(a)(6) or Section 6.01(a)(7), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.

No such rescission shall affect any subsequent Default or impair any right consequent thereto.

(d)            In the event of any Event of Default specified in Section 6.01(a)(4), such Event of Default and all consequences thereof (excluding, however, any resulting payment default) will be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders of the Notes, if within 20 days after such Event of Default arose Parent delivers an Officer’s Certificate to the Trustee stating that (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged or (y) the requisite number of holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default has been cured, it being understood that in no event shall an acceleration of the principal amount of the Notes as described above be annulled, waived or rescinded upon the happening of any such events.

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(e)            Notwithstanding anything herein to the contrary, to the extent any information is not provided within the time periods specified in Section 4.03 and such information is subsequently provided within 30 days following such time periods, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.

Section 6.03      Other Remedies.

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by Law.

Section 6.04      Waiver of Past Defaults.

The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of principal of, premium on, if any, or interest, if any, on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 6.05      Control by Majority.

Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with Law or this Indenture or the Notes, or that, subject to the terms of this Indenture, the Trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in liability (it being expressly understood that the Trustee shall not have an affirmative duty to ascertain whether such action is prejudicial), unless the Trustee is offered security and indemnity satisfactory to each of them against any loss, claim, liability, cost or expense to the Trustee that may result from the Trustee following such direction.

Section 6.06      Limitation on Suits.

No Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:

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

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(2)            Holders of at least 25% in aggregate principal amount of the then outstanding Notes have made a written request to the Trustee to pursue the remedy;

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

(4)            the Trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and

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

Section 6.07      Rights of Holders to Receive Payment.

Notwithstanding any other provision of this Indenture, the contractual right of any Holder of a Note to receive payment of principal of, premium on, if any, or interest, if any, on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be amended without the consent of such Holder.

Section 6.08      Collection Suit by Trustee.

If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium on, if any, and interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

Section 6.09      Trustee May File Proofs of Claim.

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

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Section 6.10      Priorities.

If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

Second:  to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively; and

Third:  to the Company or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

Section 6.11      Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.

Article 7
TRUSTEE and collateral agent

Section 7.01      Duties of Trustee and Notes Collateral Agent.

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

(b)            The Trustee, except during the continuance of an Event of Default and, at all times, the Notes Collateral Agent:

(1)            the duties of the Trustee and Notes Collateral Agent will be determined solely by the express provisions of this Indenture and the Collateral Documents and the Trustee and Notes Collateral Agent need perform only those duties that are specifically set forth in this Indenture and the Collateral Documents and no others, and no implied covenants or obligations shall be read into this Indenture or Collateral Documents against the Trustee or Notes Collateral Agent; and

(2)            in the absence of bad faith on its part, the Trustee and the Notes Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Notes Collateral Agent and conforming to the requirements of this Indenture and the Collateral Documents. However, the Trustee and Notes Collateral Agent will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

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(c)            Neither the Trustee nor the Notes Collateral Agent may be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

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

(2)            neither the Trustee nor the Notes Collateral Agent will be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee or Notes Collateral Agent was grossly negligent in ascertaining the pertinent facts; and

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

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

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

(f)            The Trustee and the Notes Collateral Agent will not be liable for interest on any money received by it except as the Trustee or the Notes Collateral Agent may agree in writing with the Company. Money held in trust by the Trustee or the Notes Collateral Agent need not be segregated from other funds except to the extent required by Law.

Section 7.02      Rights of Trustee and Notes Collateral Agent.

(a)            The Trustee or the Notes Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee and the Notes Collateral Agent need not investigate any fact or matter stated in the document.

(b)            Before the Trustee or the Notes Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee and the Notes Collateral Agent will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee and the Notes Collateral Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

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

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(d)            Neither the Trustee nor the Notes Collateral Agent will be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

(e)            Unless otherwise specifically provided in this Indenture or the Collateral Documents, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.

(f)            The Trustee and the Notes Collateral Agent will be under no obligation to exercise any of the rights or powers vested in it by this Indenture or the Collateral Documents at the request or direction of any of the Holders unless such Holders have offered to the Trustee and/or the Notes Collateral Agent, as relevant, indemnity or security reasonably satisfactory to the Trustee and/or the Notes Collateral Agent, as relevant, against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

(g)            The Trustee and the Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note, coupon, security other evidence of indebtedness or other paper or document.

(h)            The Trustee and the Notes Collateral Agent shall have no duty to inquire as to the performance of the covenants of Parent, the Company and/or their Restricted Subsidiaries in this Indenture or the Collateral Documents and shall be entitled to assume that the Company, the Guarantors and any Restricted Subsidiaries are in compliance with the terms of this Indenture or the Collateral Documents.

(i)            The permissive rights of the Trustee and the Notes Collateral Agent to take the actions permitted by this Indenture and/or the Collateral Documents will not be construed as an obligation or duty to do so.

(j)            Anything in this Indenture or the Notes Collateral Documents to the contrary notwithstanding, in no event shall the Trustee or the Notes Collateral Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to loss of business, goodwill, opportunity or profits of any kind) of the Company, any Guarantor, any Restricted Subsidiary or any other person, even if the Trustee or the Notes Collateral Agent have been advised of the likelihood of such loss or damage and regardless of the form of action.

(k)            In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of, or caused by, directly or indirectly, forces beyond its control, including acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, pandemics, epidemics, recognized public emergencies, quarantine restrictions, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access; it being understood that the Trustee or the Notes Collateral Agent shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

(l)            The Trustee and/or the Notes Collateral Agent may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture and the Collateral Documents, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

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Section 7.03      Individual Rights of Trustee.

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.10 hereof.

Section 7.04      Trustee’s and Notes Collateral Agent’s Disclaimer.

Each of the Trustee and the Notes Collateral Agent will not be responsible for, and makes no representation as to, the validity or adequacy of this Indenture, the Notes or the Collateral Documents, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture or the Collateral Documents, it will not be responsible for the use or application of any money received by any Paying Agent, in the case of the Trustee, other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than, in the case of the Trustee, the Trustee’s certificate of authentication.

Section 7.05      Notice of Defaults.

If a Default or Event of Default occurs and is continuing and if it is known to a Responsible Officer of the Trustee, the Trustee will mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium on, if any, or interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes.

Section 7.06      [RESERVED].

Section 7.07      Compensation and Indemnity.

(a)            The Company will pay to the Trustee and Notes Collateral Agent from time to time such compensation as shall be agreed in writing for its acceptance of this Indenture and services hereunder. Neither the Trustee’s nor the Notes Collateral Agent’s compensation will be limited by any Law on compensation of a trustee of an express trust. The Company will reimburse each of the Trustee and the Notes Collateral Agent promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s and Notes Collateral Agent’s agents and counsel.

(b)            The Company and the Guarantors will indemnify the Trustee and the Notes Collateral Agent against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, under the Collateral Documents or the Pari Passu Intercreditor Agreement, including the costs and expenses of enforcing this Indenture, the Note Guarantee, the Collateral Documents and the Pari Passu Intercreditor Agreement against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its own gross negligence, willful misconduct or bad faith. The Trustee and the Notes Collateral Agent will notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Notes Collateral Agent to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee and the Notes Collateral Agent will cooperate in the defense. The Trustee and the Notes Collateral Agent may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

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(c)            The obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture or the Collateral Documents and the resignation or removal of the Trustee or the Notes Collateral Agent.

(d)            To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee and the Notes Collateral Agent will each have a Lien prior to the Notes on all money or property held or collected by the Trustee or the Notes Collateral Agent, except that held in trust to pay principal of, premium on, if any, or interest, if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.

(e)            When the Trustee or the Notes Collateral Agent incurs expenses or renders services after an Event of Default specified in clause (6) or (7) of Section 6.01(a) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

Section 7.08      Replacement of Trustee or Notes Collateral Agent.

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

(b)            The Trustee or the Notes Collateral Agent may resign in writing at any time upon 30 days’ notice and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee or the Notes Collateral Agent upon 30 days’ notice by so notifying the Trustee or the Notes Collateral Agent and the Company in writing. The Company may remove the Trustee or the Notes Collateral Agent if:

(1)            the Trustee or the Notes Collateral Agent fails to comply with Section 7.10 hereof;

(2)            the Trustee or the Notes Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

(3)            a custodian or public officer takes charge of the Trustee or the Notes Collateral Agent or their property; or

(4)            the Trustee or the Notes Collateral Agent becomes incapable of acting.

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

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

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

(f)            A successor Trustee or successor Notes Collateral Agent will deliver a written acceptance of its appointment to the retiring Trustee or retiring Notes Collateral Agent, as applicable, and to the Company. Thereupon, the resignation or removal of the retiring Trustee or retiring Notes Collateral Agent will become effective, and the successor Trustee or successor Notes Collateral Agent, as applicable, will have all the rights, powers and duties of the Trustee or the Notes Collateral Agent, as applicable, under this Indenture. The successor Trustee or successor Notes Collateral Agent will mail a notice of its succession to Holders. The retiring Trustee or retiring Notes Collateral Agent will promptly transfer all property held by it as Trustee or Notes Collateral Agent to the successor Trustee or successor Notes Collateral Agent, as applicable; provided all sums owing to the Trustee or the Notes Collateral Agent hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee or the Notes Collateral Agent pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee or retiring Notes Collateral Agent.

Section 7.09      Successor Trustee or Successor Notes Collateral Agent by Merger, etc.

If the Trustee or Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee or successor Notes Collateral Agent, as applicable.

Section 7.10      Eligibility; Disqualification.

There will at all times be a Trustee or Notes Collateral Agent hereunder that is a corporation organized and doing business under the Laws of the United States of America or of any state thereof that is authorized under such Laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.

Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01      Option to Effect Legal Defeasance or Covenant Defeasance.

The Company may at any time elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Article 8.

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Section 8.02      Legal Defeasance and Discharge.

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee and the Notes Collateral Agent, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

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

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

(3)            the rights, powers, trusts, duties and immunities of the Trustee and the Notes Collateral Agent hereunder and the Company’s and the Guarantors’ obligations in connection therewith; and

(4)            this Article 8.

Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section 8.03      Covenant Defeasance.

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company, Parent and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under any or all of the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15, 4.16, 4.18 and 4.19 hereof and clause (2) of Section 5.01(a) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3), (4), (5), and (8) hereof will not constitute Events of Default.

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Section 8.04      Conditions to Legal or Covenant Defeasance.

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:

(1)            the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, Government Securities, rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency), in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm, to pay the principal of, premium, if any, and interest on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be;

(2)            in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that: (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (ii) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax Law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and Beneficial Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

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

(4)            no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or an Event of Default resulting from a transaction occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such deposit and the grant of any Lien securing such borrowings);

(5)            such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a Default or an Event of Default resulting from a transaction occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such deposit and the grant of any Lien securing such borrowings) or any other material agreement or instrument (including the Senior Secured Credit Facilities and the Notes) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

(6)            the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and

(7)            the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.

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Section 8.05      Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.

Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by Law.

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by Law is for the account of the Holders of the outstanding Notes.

Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

Section 8.06      Repayment to Company.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

Section 8.07      Reinstatement.

If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium on, if any, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

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Article 9
AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01      Without Consent of Holders.

Notwithstanding Section 9.02 of this Indenture, without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the Collateral Documents or the Note Guarantees:

(1)            to cure any ambiguity, omission, mistake, defect, or inconsistency; provided that such change does not adversely affect the rights of any of the Holders in any material respect;

(2)            to provide for the assumption by a Surviving Entity (with respect to the Company) of the obligations of the Company under this Indenture, the Notes, the Collateral Documents and the Pari Passu Intercreditor Agreement;

(3)            to provide for the assumption by a Surviving Guarantor (with respect to any Guarantor), as the case may be, of the obligations of a Guarantor under this Indenture, its Guarantee, the Collateral Documents and the Pari Passu Intercreditor Agreement;

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

(5)            to add a Guarantee with respect to the Notes;

(6)            to make, complete or confirm any grant of Collateral permitted or required by this Indenture or any of the Collateral Documents or the Pari Passu Intercreditor Agreement, or any release of Collateral pursuant to the terms of this Indenture or any of the Collateral Documents or the Pari Passu Intercreditor Agreement;

(7)            to provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees by a successor to the Company or such Guarantor pursuant to Article 5 or Article 10 hereof;

(8)            to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any Holder;

(9)            to conform the text of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Pari Passu Intercreditor Agreement to any provision of the “Description of the Secured Notes” section of the Offering Circular, to the extent that such provision in that “Description of the Secured Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Pari Passu Intercreditor Agreement, which intent may be evidenced by an Officer’s Certificate to that effect;

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(10)            at the Company’s election, to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act of 1939, as amended, if the Company elects to so qualify this Indenture, and, if so qualified, maintain the qualification of this Indenture under the TIA;

(11)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;

(12)            to allow any Guarantor to execute a supplemental indenture (including to evidence its Note Guarantee) and/or a Note Guarantee with respect to the Notes; provided that any such supplemental indenture need be signed only by the Company, the added Guarantor and the Trustee;

(13)            to provide for any Subsidiary of the Company or any other Person to provide a Note Guarantee, to add Note Guarantees with respect to the Notes, to add security to or for the benefit of Holders of the Notes, or to confirm and evidence the release, termination or discharge of (i) any Note Guarantee of the Notes or (ii) any Lien then securing the Notes, when required or not prohibited by this Indenture;

(14)            to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities Laws and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect;

(15)            to secure additional extensions of credit and add additional secured creditors holding other Parity Lien Indebtedness so long as such Parity Lien Indebtedness is not prohibited by the provisions of this Indenture or any other then-existing Parity Lien Indebtedness; or

(16)            to add additional assets as Collateral.

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that adversely affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02      With Consent of Holders.

(a)            Except as provided in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including Section 4.10 and 4.15 hereof), the Collateral Documents, the Notes and the Note Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest, if any, on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Collateral Documents or the Notes or the Note Guarantees may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.

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Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.

It is not necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver or any such amended Collateral Document. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture, the Collateral Documents, the Notes or the Note Guarantees. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

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

(2)            reduce the rate of, or change the time for payment of, interest, including defaulted interest, on any Notes;

(3)            reduce the principal of, or change the fixed maturity of, any Notes, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(4)            make any Notes payable in money other than that stated in the Notes;

(5)            make any change in the contractual provisions of this Indenture protecting the legal right of each Holder to receive payment of principal of and interest on such Note on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in aggregate principal amount of Notes outstanding to waive Defaults or Events of Default;

(6)            after the Company’s obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control or make and consummate a Net Proceeds Offer with respect to any Asset Sale that has been consummated or, after such Change of Control has occurred or such Asset Sale has been consummated, modify any of the provisions or definitions with respect thereto;

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(7)            release any Guarantor that is a Significant Subsidiary from any of its obligations under its Note Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture;

(8)            make any change in the provisions of this Indenture described under Section 4.16 that adversely affects the right of any Holder or Beneficial Holder in any material respect or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof;

(9)            make any change in the preceding amendment and waiver provisions; or

(10)            expressly subordinate the Notes or any Note Guarantee to any other Indebtedness of Parent, the Company or any other Guarantor, other than, in the case of subordination of liens, as expressly permitted under this Indenture, the Collateral Documents or the Pari Passu Intercreditor Agreement.

In addition, without the consent of the Holders of at least 66⅔% in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the secured notes), no amendment, supplement or waiver may (1) have the effect of releasing all or substantially all of the Collateral from the Liens of the Collateral Documents or changing or altering the priority of the security interests of the Holders of the Notes in the Collateral under the Pari Passu Intercreditor Agreement, (2) make any change in the Collateral Documents, the Pari Passu Intercreditor Agreement or the provisions in this Indenture dealing with the application of proceeds of the Collateral that would adversely affect the holders of the secured notes or (3) modify the Collateral Documents or the provisions of this Indenture dealing with Collateral in any manner adverse to the holders of the secured notes in any other material respect other than in accordance with the terms of this Indenture, the Collateral Documents or the Pari Passu Intercreditor Agreement.

(b)            The consent of the Holders of the secured notes is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. In addition, the Holders of the Notes will be deemed to have consented for purposes of this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement (and, if applicable, the junior lien intercreditor agreement) to any of the following amendments, replacements and other modifications to this Indenture, the Collateral Documents or the Pari Passu Intercreditor Agreement (or, if applicable, the junior lien intercreditor agreement) and the entry into a junior lien intercreditor agreement (provided that any such junior lien intercreditor agreement shall be substantially in the form attached to this Indenture or any other junior lien intercreditor agreement substantially similar thereto and reasonably satisfactory to the Credit Facilities Collateral Agent as indicated in writing):

(1)            to add other parties (or any authorized agent thereof or trustee therefor) holding Parity Lien Indebtedness that is incurred in compliance with the Senior Secured Credit Facilities, this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement and (b) to establish that the Liens on any Collateral securing such Parity Lien Indebtedness shall be pari passu under the Pari Passu Intercreditor Agreement with the Liens on such Collateral securing the Obligations under this Indenture, the secured notes and the Guarantees, all on the terms provided for in the Pari Passu Intercreditor Agreement in effect immediately prior to such amendment or other modification;

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(2)            to establish that the Liens on any Collateral securing any Indebtedness replacing the Senior Secured Credit Facilities or any other Pari Passu Indebtedness permitted to be incurred under this Indenture shall be pari passu to the Liens on such Collateral securing any Obligations under this Indenture, the secured notes and the Guarantees, all on the terms provided for in the Pari Passu Intercreditor Agreement in effect immediately prior to such amendment or other modification;

(3)            to secure additional extensions of credit and add additional secured creditors holding Indebtedness secured by liens on a contractually junior basis on the Collateral to the secured notes so long as such Indebtedness and Liens are not prohibited by the provisions of this Indenture and to enter into or amend the junior lien intercreditor agreement substantially in the form attached to this Indenture or any other junior lien intercreditor agreement substantially similar thereto and reasonably satisfactory to the Credit Facilities Collateral Agent as indicated in writing.

Notwithstanding anything to the contrary herein, prior to the Escrow End Date, any modifications, waivers, amendments, consents or eliminations of any provision under this Indenture or the Escrow Agreement related to any matters described Section 3.09 hereof or Section 4 of the Escrow Agreement will require the consent of each Holder affected thereby (except for modifications or amendments that (i) cure any ambiguity, omission, mistake, defect, error or inconsistency, (ii) provide additional rights or benefits to the Holders or do not materially adversely affect the legal rights under this Indenture or the Escrow Agreement of the Holders, (iii) evidence or provide for the acceptance and appointment of a successor Escrow Agent, or (iv) conform the text of this Indenture or the Escrow Agreement to any provision of the Offering Circular, as set forth in an Officer’s Certificate, which may be made by the Company and the Trustee or Escrow Agent, as applicable).

Section 9.03      Revocation and Effect of Consents.

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

Section 9.04      Notation on or Exchange of Notes.

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.

Section 9.05      Trustee and Notes Collateral Agent to Sign Amendments, etc.

The Trustee or the Notes Collateral Agent, as applicable, will sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Notes Collateral Agent, as applicable. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 13.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

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Notwithstanding anything to the contrary herein, no Opinion of Counsel will be required for the Trustee or the Notes Collateral Agent, as applicable, to execute any amendment or supplement entered into in connection with adding or releasing a Guarantor; provided that the Trustee or the Notes Collateral Agent, as applicable, shall be entitled to conclusively rely on an Officer’s Certificate in executing such amendment or supplement or delivering such release and shall have no liability to any person for so relying.

Article 10
NOTE GUARANTEES

Section 10.01      Guarantee.

(a)            Subject to this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:

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

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

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)            Subject to this Article 10, the Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

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

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

Section 10.02      Limitation on Guarantor Liability.

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

Section 10.03      Execution and Delivery of Supplemental Indenture.

To evidence its Note Guarantee set forth in ‎Section 10.01 hereof, each Guarantor hereby agrees that its execution and delivery of this Indenture or, if applicable, any supplemental indenture pursuant to ‎Section 4.18 hereof and this ‎Section 10.03 shall evidence its Note Guarantee set forth in ‎Section 10.01 hereof without the need for notation on the Notes.

If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

If, after the Issue Date, any Restricted Subsidiary of the Company Guarantees any Indebtedness of the Company or a Guarantor under (i) a Credit Facility or (ii) Capital Markets Indebtedness in an aggregate principal amount exceeding $100.0 million, if required by Section 4.18 hereof, the Company will cause such Restricted Subsidiary to comply with the provisions of Section 4.18 hereof and this Article 10, to the extent applicable.

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Each Person that becomes a Guarantor after the Issue Date shall also become a party to the applicable Collateral Documents and shall as promptly as practicable execute and deliver such security instruments and financing statements (in substantially the same form as those executed and delivered with respect to the Collateral on the Issue Date or on the date first delivered in the case of Collateral) that this Indenture provides may be delivered after the Issue Date (to the extent, and substantially in the form, delivered on the Issue Date or the date first delivered, as applicable (but no greater scope)) as may be necessary to vest in the Notes Collateral Agent a perfected first-priority security interest (subject to Permitted Liens) in properties and assets that constitute Collateral, in either case, as security for such Guarantor’s Note Guarantee and as may be necessary to have such property or asset added to the Collateral as required under the Collateral Documents and this Indenture, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.

Section 10.04      Guarantors May Consolidate, etc., on Certain Terms.

Except as otherwise provided in Section 10.05 hereof, each Guarantor will not, and Parent and the Company will not cause or permit any Guarantor to, amalgamate or consolidate with or merge with or into any Person other than Parent, the Company or any other Guarantor unless:

(1)            the entity formed by or surviving any such amalgamation, consolidation or merger (if other than such Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is an entity organized or existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom, any member state of the European Union or such other jurisdiction as such Guarantor was organized or existing under (such Guarantor or Person, as the case may be, the “Surviving Guarantor”);

(2)            the Surviving Guarantor (if other than such Guarantor) assumes by supplemental indenture all of the obligations of the Guarantor on its Note Guarantee and that the Collateral Documents shall continue to be in effect and such Guarantor shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by such Guarantor;

(3)            immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;

(4)            to the extent any property or assets of the Surviving Guarantor, or the Person that is merged, amalgamated or consolidated with or into the Surviving Guarantor, are property or assets of the type that would constitute Collateral under the Collateral Documents or the Pari Passu Intercreditor Agreement, the Surviving Guarantor will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement in the manner and to the extent required by this Indenture or any of the Collateral Documents or the Pari Passu Intercreditor Agreement, and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement;

(5)            the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Surviving Guarantor shall (a) continue to constitute Collateral under this Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the holders of the Notes and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted under the covenant described above under Section 4.12; and

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(6)            the Surviving Guarantor shall become a party to the Pari Passu Intercreditor Agreement by joinder or supplement.

Any amalgamation, merger or consolidation of, or sale, assignment, transfer, lease, conveyance or other disposition of assets by, a Guarantor with Parent or the Company (with Parent or the Company being the surviving entity in case of an amalgamation, merger of consolidation) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with Section 5.01(a)(4) or Section 5.01(a)(6) above, as applicable.

In case of any such amalgamation, consolidation, merger, sale, assignment, transfer, or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Except as set forth in Articles 4 and 5 hereof, and notwithstanding clause (1) above, nothing contained in this Indenture or in any of the Notes will prevent any amalgamation, consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale, assignment, transfer, or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

Section 10.05      Releases.

(a)            In the event of any sale, assignment, transfer, conveyance, or other disposition of all or substantially all of the assets of any Guarantor, by way of amalgamation, merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) Parent, the Company or a Restricted Subsidiary of Parent or the Company, then the corporation acquiring the property will be released and relieved of any obligations under the Note Guarantee;

(b)            In the event of any sale, assignment, transfer, conveyance, or other disposition of Capital Stock of any Guarantor to a Person that is not (either before or after giving effect to such transaction) Parent, the Company or a Restricted Subsidiary of Parent or the Company and such Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or other disposition, then such Guarantor will be released and relieved of any obligations under its Note Guarantee;

provided, in both cases, that the Net Cash Proceeds of such sale, assignment, transfer, conveyance, or other disposition are applied in accordance with the applicable provisions of this Indenture, including Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such sale, assignment, transfer, conveyance, or other disposition was made by the Company in accordance with the provisions of this Indenture, including Section 4.10 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

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(c)            Upon designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.

(d)            Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.

(e)            A Guarantor’s Note Guarantee shall be automatically released upon such Guarantor being released from or discharged of, its Guarantee of, and all pledges and security, if any, granted by such Guarantor in connection with, the Senior Secured Credit Facilities, the Unsecured Notes Indenture or such other Guarantee that resulted in the creation of such Note Guarantee (except, in the case of the Senior Secured Credit Facilities and the Unsecured Notes Indenture, a release by or as a result of a payment thereon).

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain liable for the full amount of principal of, premium on, if any, and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.

Article 11
satisfaction and discharge

Section 11.01      Satisfaction and Discharge.

This Indenture (including the Notes and the Note Guarantees) will be discharged and this Indenture will cease to be of further effect as to all Notes and Note Guarantees issued hereunder, when:

(1)            either:

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

(b)            all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year (or are to be called for redemption within one year), and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient (in the opinion of a nationally recognized firm of independent certified public accountants) to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;

(2)            the Company has paid all other sums payable under this Indenture by the Company; and

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

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In the case of satisfaction and discharge, upon any redemption that requires the payment of the Applicable Premium, the amount deposited with the Trustee shall be sufficient for purposes of Section 11.01(1)(b) to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of three Business Days prior to the date of such deposit, with any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption.

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to Section 11.01(1)(b), the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.

Section 11.02      Application of Trust Money.

Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by Law.

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium on, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

Article 12
COLLATERAL AND SECURITY

Section 12.01      Collateral.

(a)            From and after the Issue Date and the Escrow Release Date, as applicable, the due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Note Guarantees and performance of all other obligations under this Indenture, including the obligations of the Company set forth in Section 7.07, and the Notes, the Note Guarantees and the Collateral Documents, shall be secured by Liens on the Collateral on an equal and ratable basis with all Parity Lien Obligations as provided in this Indenture and the Collateral Documents to which the Company and the Guarantors, as the case may be, shall become parties to on the Issue Date or the Escrow Release Date (as applicable) or thereafter and will be secured by all of the Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. The Company, for the benefit of the holders, hereby appoints U.S. Bank Trust Company, National Association, as the initial Notes Collateral Agent, and the Notes Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Pari Passu Intercreditor Agreement. Each Holder by its acceptance of any Notes and the Note Guarantees thereof, irrevocably consents and agrees to such appointment.

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(b)            Each holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Collateral Documents and the Pari Passu Intercreditor Agreement (including the provisions providing for foreclosure and release of Collateral and the automatic amendments, supplements, consents, waivers and other modifications thereto without the consent of the holders) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and authorizes and directs the Notes Collateral Agent to perform its obligations and exercise its rights under the Collateral Documents and the Pari Passu Intercreditor Agreement in accordance therewith, binding such holder to the terms thereof.

(c)            The Trustee and each holder, by accepting the Notes and the Note Guarantees, acknowledges that, as more fully set forth in the Collateral Documents and the Pari Passu Intercreditor Agreement, the Collateral as hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and the Pari Passu Intercreditor Agreement and actions that may be taken thereunder.

Section 12.02      Further Assurances.

To the extent required under this Indenture or any of the Collateral Documents or the Pari Passu Intercreditor Agreement, from and after the Issue Date, Parent, the Company and the other Guarantors shall execute and file any and all further documents, financing statements, agreements and instruments, and take all further actions that may be required under applicable laws, or that the Notes Collateral Agent or the Trustee may reasonably request, in order to grant, preserve, protect and perfect the validity and priority of the security interests and Liens created or intended to be created by the Collateral Documents in the Collateral, it being understood that the Trustee or the Notes Collateral Agent is under no obligation to make such request. In addition, to the extent required under this Indenture or the Collateral Documents, from time to time, Parent, the Company and the other Guarantors will reasonably promptly secure the obligations under this Indenture and Collateral Documents by pledging or creating, or causing to be pledged or created, perfected security interests and Liens with respect to the Collateral to the extent required by this Indenture and/or the Collateral Documents.

Section 12.03      After-Acquired Property.

Upon the acquisition by any of Parent, the Company or the other Guarantors after the Issue Date of any assets that would have constituted Collateral (which, for the avoidance of doubt, does not include Excluded Property) had such assets been owned by Parent, the Company or the other Guarantor on the Issue Date, subject to certain exceptions set forth in the Collateral Documents, Parent, the Company or such Guarantor shall grant, upon the time periods set forth in the Collateral Documents, a first-priority perfected security interest (subject to Permitted Liens) upon any such Collateral to the Notes Collateral Agent for the benefit of the holders of the Secured Notes, and thereupon all provisions of this Indenture and the Collateral Documents relating to the Collateral shall be deemed to relate to such after-acquired property to the same extent and with the same force and effect.

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Section 12.04      Release of Liens on Collateral.

The Liens on the Collateral will be released automatically, without the need for any further action by any other Person, with respect to the Notes and the related Note Guarantees, as applicable:

(1)            any property or assets constituting Collateral, to enable the consummation of the disposition of such property or assets (to a Person that is not Parent, the Company or a Guarantor) to the extent not prohibited by the provision of this Indenture, including if not prohibited under Section 4.10 or in connection with any Recovery Event;

(2)            the property and assets of a Guarantor upon the release of such Guarantor from its Guarantee in accordance with the terms of this Indenture;

(3)            the property and assets of a Guarantor if such Guarantor ceases to be a Restricted Subsidiary of Parent upon the consummation of any transaction permitted by this Indenture to the extent such Guarantor is also released under the Senior Secured Credit Facilities and any other Parity Lien Indebtedness;

(4)            as required pursuant to the terms of any Pari Passu Intercreditor Agreement; and

(5)            as contemplated by Article 9.

(b)            The security interests in all Collateral securing the Notes also will be released automatically, without the need for any further action by any Person, upon (i) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, are paid (including pursuant to a satisfaction and discharge of this Indenture pursuant to Article 11 or (ii) a legal defeasance or covenant defeasance as set forth in Article 8. The Company or the applicable Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Sections 12.06(a)(i) through (v) or pursuant to the Collateral Documents:

(1)            an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with; and

(2)            a form of such release (which release shall provide that the requested release is without recourse or warranty to the Trustee or the Notes Collateral Agent).

(c)            Upon compliance by the Company or any Guarantor, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Company shall provide detailed directions to Trustee and the Notes Collateral Agent pertaining to release and reconveyance to the Company or the relevant Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Company or such Guarantor in writing in connection therewith, at the Company’s expense.

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Section 12.05      Authorization of Actions to be Taken by the Trustee or the Notes Collateral Agent under the Collateral Documents and the Pari Passu Intercreditor Agreement.

(a)            Subject to the provisions of Article 12 of this Indenture and the provisions of the Collateral Documents and the Pari Passu Intercreditor Agreement, each of the Trustee or the Notes Collateral Agent may (but shall in no event be required to), in its sole discretion and without the consent of the holders, on behalf of the holders, take all actions it deems necessary or appropriate in order to (i) enforce any of its rights or any of the rights of the holders under the Collateral Documents and the Pari Passu Intercreditor Agreement and (ii) collect and receive any and all amounts payable in respect of the Collateral in respect of the obligations of the Company and the Guarantors hereunder and thereunder. Subject to the provisions of the Collateral Documents and the Pari Passu Intercreditor Agreement, the Trustee or the Notes Collateral Agent shall have the power, but not the obligation, to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may (without having any obligation whatsoever to pursue) deem expedient to preserve or protect its interest and the interests of the holders in the Collateral (including the power, but not the obligation, to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the holders or the Trustee).

(b)            The Trustee or the Notes Collateral Agent shall not be responsible for the existence, genuineness or value (or diminution of value) of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or inaction on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee or the Notes Collateral Agent shall have no responsibility for recording, filing, re-recording or refiling any financing statement, continuation statement, termination statement, document, instrument, other notice or any amendment thereto in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Collateral Documents or otherwise. Beyond the exercise of reasonable care in the custody thereof, the Trustee and the Notes Collateral Agent shall have no duty as to any Collateral in their possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Trustee and the Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in their possession if the Collateral is accorded treatment substantially equal to that which they accord their own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or the Notes Collateral Agent, as the case may be, in good faith. The Trustee and the Notes Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Collateral Documents by the Company or the Guarantors.

(c)            Where any provision of this Indenture requires that additional property or assets be added to the Collateral, the Company and each Guarantor, as applicable, shall deliver to the Trustee or the Notes Collateral Agent the following (in each case, to the extent any additional actions on the part of the Company or applicable Guarantor are necessary to provide, grant or perfect a security interest in such Collateral as required under this Indenture and the applicable Collateral Documents):

(1)            a request from the Company that such Collateral be added;

(2)            the form of instrument adding such Collateral, which, based on the type and location of the property subject thereto, shall be in substantially the form of the applicable Collateral Documents entered into on the Issue Date or on the date first delivered in the case of Collateral that is permitted hereunder to be delivered after the Issue Date, with such changes thereto as the Company shall consider appropriate, or in such other form as the Company shall deem proper; provided that any such changes or such form are satisfactory in form to the Trustee or the Notes Collateral Agent;

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(3)            an Officer’s Certificate to the effect that the Collateral being added is in the form, consists of the assets, if applicable, and is in the amount or otherwise has the Fair Market Value required by this Indenture;

(4)            to the extent such Collateral is being added in connection with the joinder of a Subsidiary Guarantor to this Agreement, an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture to the addition of such Collateral have been complied with; and

(5)            such financing statements, if any, as the Company shall deem necessary to perfect the Notes Collateral Agent’s security interest in such Collateral.

(d)            The Trustee or the Notes Collateral Agent, in giving any consent or approval under the Collateral Documents and in executing and delivering any documents or instruments, shall be entitled to receive, as a condition to such consent or approval, an Officer’s Certificate to the effect that the action or omission for which consent or approval is to be given and the execution and delivery of any documents and instruments is authorized and permitted according to the terms of this Indenture and the Collateral Documents, and the Trustee or the Notes Collateral Agent shall be fully protected in giving such consent or approval and/or executing and delivering any such documents on the basis of such Officer’s Certificate.

Section 12.06      Information Regarding Collateral.

(a)            The Company will furnish to the Notes Collateral Agent, with respect to Parent, the Company or any other Guarantor, written notice within 10 Business Days of any change in such Person’s (1) legal name, (2) jurisdiction of organization or formation, (3) form of organization or (4) organizational identification number to the extent such organizational identification number is necessary for the perfection of the assets of such Person. Parent, the Company and the other Guarantors agree to make all filings, publications and registrations under the UCC, PPSA or other applicable law that are required in order for the Notes Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest to the extent required under this Indenture (subject only to Liens expressly permitted by this Indenture) in all the Collateral for its own benefit and the benefit of the other secured parties.

(b)            The Company shall deliver to the Trustee and the Notes Collateral Agent an Officer’s Certificate attaching supplemental schedules required under the Collateral Documents to the extent required under and at the same time as similar supplemental schedules are delivered to the Credit Facilities Collateral Agent under the Senior Secured Credit Facilities and the Security Agreement (as defined in the Senior Secured Credit Facilities).

Section 12.07      Collateral Documents and Pari Passu Intercreditor Agreement.

The provisions in this Indenture relating to Collateral are subject to the provisions of the Collateral Documents and the Pari Passu Intercreditor Agreement. The Company, the Guarantors, the Trustee and the Notes Collateral Agent acknowledge and agree to be bound by the provisions of the Collateral Documents and the Pari Passu Intercreditor Agreement.

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Section 12.08      Notes Collateral Agent.

(a)            By accepting a Note, each Holder will be deemed to have irrevocably appointed the Notes Collateral Agent to act as its agent under the Collateral Documents and the Pari Passu Intercreditor Agreement and to have irrevocably authorized and directed the Notes Collateral Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Documents, the Pari Passu Intercreditor Agreement or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by the Notes Collateral Agent on its behalf. Each of the holders hereby exempts the Notes Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable Laws to the extent legally possible for such Holder.

(b)            The Notes Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including the Credit Facilities Collateral Agent.

(c)            The Notes Collateral Agent shall have all the rights and protection provided in the Collateral Documents as well as the rights and protections afforded to it hereunder; provided, however, that the Company shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Notes Collateral Agent through the Notes Collateral Agent’s own willful misconduct or gross negligence, as determined by a final order of a court of competent jurisdiction.

(d)            None of the Trustee, the Notes Collateral Agent or any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien securing the Notes or any defect or deficiency as to any such matters, except to the extent any possessory collateral is delivered to the Notes Collateral Agent for perfection purposes.

(e)            Subject to the Collateral Documents and the Pari Passu Intercreditor Agreement, except as directed by the Trustee as required or permitted by this Indenture, the holders acknowledge that the Notes Collateral Agent will not be obligated:

(1)            to act upon directions purported to be delivered to it by any other Person;

(2)            to foreclose upon or otherwise enforce any Lien securing the Notes; or

(3)            to take any other action whatsoever with regard to any or all Liens securing the Notes, the Collateral Documents or the Collateral.

(f)            In acting as Notes Collateral Agent, co-collateral agent or sub-collateral agent, the Notes Collateral Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.

(g)            Neither the Trustee nor the Notes Collateral Agent shall have any duty to file any financing statements, continuation statements or amendments thereto or any other agreement or instrument to record or perfect or maintain the perfection of the Notes Collateral Agent’s security interest in the Collateral.

(h)            For greater certainty, the duties of the Notes Collateral Agent to act as notes collateral agent for each Holder under Collateral Documents as contemplated in Section 12.08(a) shall include, for the purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Company and the Guarantors pursuant to or governed by the laws of the Province of Québec, to act as the hypothecary representative within the meaning of article 2692 of the Civil Code of Quebec for all present and future Holders in order to hold any Collateral Document granted under the laws of the Province of Quebec, and to exercise such rights and duties as are conferred upon a hypothecary representative under the relevant Collateral Document and applicable laws (with the power to delegate any such rights or duties). The Notes Collateral Agent, acting as hypothecary representative, will have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the Notes Collateral Agent under this Indenture, which will apply mutatis mutandis. In the event of the resignation and appointment of a successor Notes Collateral Agent, such successor Notes Collateral Agent will also act as hypothecary representative.

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Article 13
MISCELLANEOUS

Section 13.01      [RESERVED].

Section 13.02      Notices.

Any notice or communication by the Company, any Guarantor, the Trustee or the Notes Collateral Agent to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission, given by electronic mail in PDF format or overnight air courier guaranteeing next day delivery, to the others’ address:

If to the Company and/or any Guarantor:

Ritchie Bros. Holdings Inc.
4000 Pine Lake Road

Lincoln, NE 68516
Email: legal@ritchiebros.com
Attention: Treasurer and Corporate Secretary

With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California 94301
Email: Gregg.Noel@skadden.com
Attention: Gregg Noel

If to the Trustee or the Notes Collateral Agent:
U.S. Bank Trust Company, National Association
Global Corporate Trust
555 SW Oak Street, PD-OR-P7TD
Portland, OR 97204
Email: linda.mcconkey@usbank.com
Attention: Linda A. McConkey, Vice President

The Company, any Guarantor, the Trustee or the Notes Collateral Agent, by notice to the others, may designate additional or different addresses, including electronic mail addresses, for subsequent notices or communications.

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile or delivered by electronic mail (in PDF format); and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

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Any notice or communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar or, with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically. Failure to deliver, mail, transmit or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.

If a notice or communication is delivered, mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

If the Company mails or sends a notice or communication to Holders, it will mail or send a copy to the Trustee or the Notes Collateral Agent and each Agent at the same time.

Section 13.03      Communication by Holders with Other Holders.

Holders may communicate with other Holders with respect to their rights under this Indenture or the Notes.

Section 13.04      Certificate and Opinion as to Conditions Precedent.

Upon any request or application by the Company to the Trustee or the Notes Collateral Agent to take any action under this Indenture, including with respect to clauses (2), (3) and (11) of the definition of “Excluded Property,” the Company shall furnish to the Trustee or the Notes Collateral Agent, as applicable:

(1)            an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

Section 13.05      Statements Required in Certificate or Opinion.

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificate required by Section 4.04) must include:

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

118 

(3)            a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(4)            a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Section 13.06      Rules by Trustee, Notes Collateral Agent and Agents.

The Trustee and the Notes Collateral Agent may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 13.07      No Personal Liability of Directors, Officers, Employees and Stockholders.

No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

Section 13.08      Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company, each of the Guarantors, the Trustee and the Notes Collateral Agent agree that any suit, action or proceeding arising out of or based upon this Indenture may be instituted in any State or U.S. federal court located in The City of New York and County of New York, and waives any objection that such party may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and each Guarantor agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and each Guarantor, as applicable, and may be enforced in any court to the jurisdiction of which the Company and each Guarantor, as applicable, is subject by a suit upon such judgment.

The Company and each of the Guarantors irrevocably appoint RBA Holdings Inc. as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Company or any such Guarantor, as the case may be, by the person serving the same to the address provided in Section 13.02, shall be deemed in every respect effective service of process upon the Company and such Guarantor in any such suit or proceeding. RBA Holdings Inc. hereby accepts such appointment and agrees to act as such authorized agent for service of process. The Company and each of the Guarantors further agree to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent (or a successor authorized agent that has been validly appointed and which has accepted such appointment; provided the Company notifies the Trustee and the Notes Collateral Agent of such succession in writing) in full force and effect until no Notes remain outstanding.

119 

THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.

Section 13.09      No Adverse Interpretation of Other Agreements.

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 13.10      Successors.

All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of the Notes Collateral Agent in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05.

Section 13.11      Severability.

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 13.12      Counterpart Originals.

The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture and signature pages for all purposes.

Section 13.13      Table of Contents, Headings, etc.

The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.

Section 13.14      USA PATRIOT Act.

The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplanted from time to time, the “USA PATRIOT Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

120 

Section 13.15      Interest Act (Canada).

Solely for purposes of disclosure under the Interest Act (Canada), whenever a rate of interest or fee under a secured note is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee shall be expressed as a yearly rate by multiplying such rate of interest or fee by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

Section 13.16      Usury Saving Clause.

If any provision of this Indenture, the Note Guarantee or the Notes would obligate the Company or any Guarantor that is a Canadian Restricted Subsidiary to make any payment of or on account of interest or other amount in an amount or calculated at a rate which would result in a receipt by any Holder of interest at a criminal rate (as such term is construed under the Criminal Code (Canada)), then notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not so result in a receipt by such Holder of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing the amount or rate of interest required to be paid to such Holder, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to such Holder which would constitute “interest” for purposes of Section 347 of the Criminal Code (Canada).

Section 13.17      Limitations Act, 2002 (Ontario).

Any and all limitation periods provided for in the Limitations Act, 2002 (Ontario), as amended from time to time, or any other applicable Law limiting the time for which an action may be commenced shall be excluded from application to the obligations of any Guarantor hereunder to fullest extent permitted by such act or applicable Law.

[Signatures on following page]

121 

SIGNATURES

Dated as of March 15, 2023

Ritchie Bros. Holdings Inc.
By:	/s/ Timothy Kirschbaum
	Name: Timothy Kirschbaum
	Title: Treasurer and Corporate Secretary

Ritchie Bros. Auctioneers Incorporated
By:	/s/ Darren Watt
	Name: Darren Watt
	Title: SVP, General Counsel & Corporate Secretary

U.S. Bank Trust Company, National Association, as Trustee and as Notes Collateral Agent
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President

EXHIBIT A

[Face of Note]

CUSIP/ISIN ____________

6.750% Senior Secured Notes due 2028

No. ___ $____________

RITCHIE BROS. HOLDINGS INC.

promises to pay to                or registered assigns,

the principal sum of __________________________________________________________ DOLLARS [(or, in the event of adjustment in accordance with the within-mentioned Indenture, such other amount as may be stated from time to time on the “Schedule of Exchanges of Interests in the Global Note” attached hereto)]* on March 15, 2028.

Interest Payment Dates: March 15 and September 15

Record Dates: March 1 and September 1

*            The bracketed language should be included only if the Note is issued in global form.

A-1 

Dated:

RITCHIE BROS. HOLDINGS INC.
By:
	Name:
	Title:

A-2 

This is one of the Notes referred to
in the within-mentioned Indenture:

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee

By:
	Authorized Signatory:

A-3 

[Back of Note]
6.750% Senior Secured Notes due 2028

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Canadian Legend]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1)            Interest. Ritchie Bros. Holdings Inc., a Washington corporation (the “Company”), promises to pay or cause to be paid interest on the principal amount of this Note at 6.750% per annum from March 15, 2023 until maturity. The Company will pay interest, if any, semi-annually in arrears on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that, if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be September 15, 2023. The Company will pay interest (including post-petition interest in any case or proceeding under any Bankruptcy Law) on overdue principal at the interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any case or proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.

Interest on the secured notes will be computed on the basis of a 360-day year comprised of twelve 30 day months. Solely for purposes of disclosure under the Interest Act (Canada), whenever a rate of interest or fee under a secured note is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee shall be expressed as a yearly rate by multiplying such rate of interest or fee by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

(2)            Method of Payment. The Company will pay interest on the Notes (except defaulted interest), if any, to the Persons who are registered Holders at the close of business on the March 1 or September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Paying Agent and Registrar within the Borough of Manhattan, The City of New York, or, at the option of the Company, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium on, if any, and interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent; provided, further, that the Company will pay all principal, interest and premium, if any, on any Global Notes registered in the name of DTC or its nominee in immediately available funds to DTC or such nominee, as the case may be, as the registered holder of such Global Notes. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

A-4 

(3)            Paying Agent and Registrar. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

(4)            Indenture. The Company issued the Notes under an Indenture dated as of March 15, 2023 (the “Indenture”) among the Company, Parent, the Trustee and the Notes Collateral Agent. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5)            Optional Redemption.

(a)            At any time prior to March 15, 2025, the Notes will be redeemable, at the Company’s option, in whole or in part from time to time, upon not less than 10 nor more than 60 days’ written notice, at a price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date).

(b)            In addition, the Company may redeem the Notes at its option, in whole or in part, upon not less than 10 nor more than 60 days’ written notice, at the following redemption prices (expressed as percentages of the principal amount thereof) plus accrued and unpaid interest, if any, to, but excluding, the redemption date if redeemed during the 12-month period commencing on March 15 of the year set forth below:

Year	Percentage
2025		103.3750	%
2026		101.6875	%
2027 and thereafter		100.0000	%

In addition, the Company must pay accrued and unpaid interest on the Notes redeemed to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date).

(c)            At any time, or from time to time, on or prior to March 15, 2026 the Company may, at its option, use an amount of cash up to the Net Cash Proceeds of one or more Equity Offerings to redeem, upon not less than 10 nor more than 60 days’ written notice up to 40% of the principal amount of the Notes (including any Additional Notes) outstanding under the Indenture at a redemption price of 106.750% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date); provided that:

(1)            at least 50% of the principal amount of Notes (including any Additional Notes) outstanding under the Indenture remains outstanding immediately after any such redemption; and

(2)            the Company makes such redemption not more than 90 days after the consummation of any such Equity Offering.

A-5 

(d)            If, as a result of:

(1)            any amendment to, or change in, the Laws or treaties (or regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction which is announced and becomes effective on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date); or

(2)            any amendment to, or change in, the existing official written position or the introduction of a written official position regarding the application, interpretation, administration or assessing practices of any such Laws, regulations or rulings of any Relevant Taxing Jurisdiction, or a judicial decision rendered by a court of competent jurisdiction (whether or not made, taken or reached with respect to the Company or any of the Guarantors) which is announced on or after, and becomes effective on or after (for the avoidance of doubt, including retroactive implementation with an effective date prior to) the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date),

any Payor has become or will become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or a Note Guarantee, as applicable, Additional Amounts or indemnification payments as described under Section 4.16 of the Indenture with respect to the Relevant Taxing Jurisdiction, which payment the Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) cannot avoid with the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), then the Company may, at its option, redeem all but not less than all of the Notes, upon not more than 60 days’ notice prior to the earliest date on which a Payor would be required to pay such Additional Amounts or indemnification payments, at a redemption price of 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date). The Company will not give any such notice of redemption unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect. Prior to the giving of any notice of redemption described in Section 3.07(d) of the Indenture, the Company will deliver to the Trustee a written opinion of independent legal counsel to the Payor of recognized standing and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld, conditioned or delayed), to the effect that the Payor has or will become obligated to pay such Additional Amounts or indemnification payments as a result of an amendment or change described above.

In addition, prior to the giving of any such notice of redemption, the Company will deliver to the Trustee an Officer’s Certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by the applicable Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) taking reasonable measures available to it; provided that changing the jurisdiction of incorporation or formation of the applicable Payor shall not be considered a reasonable measure.

The Trustee will accept and may rely conclusively on such Officer’s Certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.

A-6 

(e)            Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.

(6)            Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes, other than a Special Mandatory Redemption under Section 3.09 of the Indenture.

(7)            Repurchase at the Option of Holder.

(a)            Upon the occurrence of a Change of Control, the Company will offer to purchase all or a portion of such Holder’s Notes pursuant to the offer described in Section 4.15 of the Indenture (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Company shall send a written notice to each Holder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer.

(b)            Subject to Section 4.10(a) of the Indenture, if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) thereof within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company, Parent or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of any such Pari Passu Indebtedness) on a pro rata basis based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum amount (or accreted value, as applicable) of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by Parent or any Restricted Subsidiary of Parent, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with Section 4.10 of the Indenture.

(8)            Notice of Redemption. Except as described above under Section 3.09 of the Indenture, notice of redemption will be sent electronically or mailed by first-class mail at least 10 but not more than 60 days before the redemption date to each Holder at its registered address, except that redemption notices may be 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 the Indenture pursuant to Articles 8 or 11 of the Indenture. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.

Notice of any redemption of the Notes in connection with a corporate transaction (including an Equity Offering, an incurrence of Indebtedness, an amalgamation, consolidation or merger or a Change of Control) may, at the Company’s discretion, be given prior to the completion thereof and any such redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related transaction. 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 Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived by the Company (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 redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.

A-7 

(9)            Denominations, Transfer, Exchange. The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by Law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.

(10)            Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.

(11)            Amendment, Supplement and Waiver. The Indenture, the Notes or the Note Guarantees may be amended or supplemented in accordance with Article 9 of the Indenture.

(12)            Defaults and Remedies. The Notes are subject to the Events of Default and remedies set forth in Article 6 of the Indenture. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(13)            Trustee and Notes Collateral Agent Dealings with Company. The Trustee and/or the Notes Collateral Agent, in their individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee or the Notes Collateral Agent.

(14)            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

(15)            Authentication. This Note will not be valid until authenticated by the manual, facsimile or electronic signature of the Trustee or an authenticating agent.

A-8 

(16)            Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17)            Guarantees. This Note is guaranteed as set forth in the Indenture.

(18)         CUSIP/ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP/ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP/ISIN numbers in notices (including notices of redemption) as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice, and reliance may be placed only on the other identification numbers placed thereon.

(19)            Security. The Notes are secured by first-priority Liens in the Collateral subject to Permitted Liens, on the terms and conditions set forth in the Indenture, the Collateral Documents and the Pari Passu Intercreditor Agreement. The Notes Collateral Agent holds a Lien in the Collateral for the benefit of the Trustee and the holders, in each case pursuant to the Collateral Documents.

(20)          GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516
Attention: Treasurer and Corporate Secretary

A-9 

Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:
	(Insert assignee’s legal name)

(Insert assignee’s soc. sec. or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

and irrevocably appoint

to transfer this Note on the books of the Company. The agent may substitute another to act for him.

Date: _______________

Your Signature:
	(Sign exactly as your name appears on the face of this Note)

Signature Guarantee*: _________________________

*            Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-10 

Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

¨ Section 4.10      ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$_______________

Date: _______________

Your Signature:
	(Sign exactly as your name appears on the face of this Note)

Tax Identification No.:

Signature Guarantee*: _________________________

*            Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-11 

Schedule of Exchanges of Interests in the Global Note *

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

Date of Exchange Amount of
decrease in
Principal Amount
of
this Global Note Amount of
increase in
Principal Amount
of
this Global Note Principal Amount
of this Global Note
following such
decrease
(or increase) Signature of
authorized officer
of Trustee or
Custodian

* This schedule should be included only if the Note is issued in global form.

A-12 

EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com

Attention: Linda A. McConkey, Vice President

Re: 6.750% Senior Secured Notes due 2028

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1.  ¨  Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2.  ¨  Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

B-1 

3. ¨ Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a)            ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

or

(b)            ¨ such Transfer is being effected to the Company or a subsidiary thereof;

or

(c)            ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

or

(d)            ¨ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.

B-2 

4. ¨ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

(a)  ¨ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(b)  ¨ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c)  ¨ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Transferor]

By:
	Name:
	Title:

Dated: _______________________

B-3 

ANNEX A TO CERTIFICATE OF TRANSFER

1.            The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

(a)            ¨ a beneficial interest in the:

(i)            ¨ 144A Global Note (CUSIP _________), or

(ii)            ¨ Regulation S Global Note (CUSIP _________), or

(iii)            ¨ IAI Global Note (CUSIP _________); or

(b)            ¨ a Restricted Definitive Note.

2.            After the Transfer the Transferee will hold:

[CHECK ONE]

(a)            ¨ a beneficial interest in the:

(i)            ¨ 144A Global Note (CUSIP _________), or

(ii)            ¨ Regulation S Global Note (CUSIP _________), or

(iii)            ¨ IAI Global Note (CUSIP _________); or

(iv)            ¨ Unrestricted Global Note (CUSIP _________); or

(b)            ¨ a Restricted Definitive Note; or

(c)            ¨ an Unrestricted Definitive Note,

in accordance with the terms of the Indenture.

B-4 

EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com 

Attention: Linda A. McConkey, Vice President

Re: 6.750% Senior Secured Notes due 2028

(CUSIP [      ])

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:

1.            Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(b)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

C-1 

(c)  ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(d)  ¨ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

2.            Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

(b)  ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, ¨ IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Transferor]

By:
	Name:
	Title:

Dated: ______________________

C-2 

EXHIBIT D

FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com 

Attention: Linda A. McConkey, Vice President

Re: 6.750% Senior Secured Notes due 2028

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $____________ aggregate principal amount of:

(a)  ¨ a beneficial interest in a Global Note, or

(b)  ¨ a Definitive Note,

we confirm that:

1.            We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).

2.            We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.

D-1 

3.            We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

4.            We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

5.            We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

[Insert Name of Accredited Investor]

By:
	Name:
	Title:

Dated: _______________________

D-2 

EXHIBIT E

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

Supplemental Indenture (this “Supplemental Indenture”), dated as of ________________, among __________________ (the “Guaranteeing Entity”), Ritchie Bros. Holdings Inc., a Washington corporation (the “Company”), and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and notes collateral agent (in such capacity, the “Notes Collateral Agent”) under the Indenture referred to below.

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of March 15, 2023, providing for the issuance of 6.750% Senior Secured Notes due 2028 (the “Notes”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth therein (the “Note Guarantee”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Entity and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1.            Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2.            Agreement to Guarantee. The Guaranteeing Entity hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture including but not limited to Article 10 thereof.

3.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

4.            NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

5.            WAIVER OF TRIAL BY JURY. THE COMPANY, THE GUARANTEEING ENTITY AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.

E-1 

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

7.            Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

8.            The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity and the Company.

E-2 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated: _______________,

[GUARANTEEING ENTITY]
By:
	Name:
	Title:

Ritchie Bros. Holdings Inc.
By:
	Name:
	Title:

E-3 

U.S. Bank Trust Company, National Association, as Trustee and Notes Collateral Agent
By:
	Name:
	Title:

E-4 

EX-4.2

Exhibit 4.2

Execution Version

RITCHIE BROS. HOLDINGS INC.

7.750% SENIOR NOTES DUE 2031

INDENTURE

Dated as of March 15, 2023

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

Trustee

TABLE OF CONTENTS

Article 1
DEFINITIONS AND INCORPORATION
BY REFERENCE

Page

Section 1.01	Definitions	1
Section 1.02	Other Definitions	29
Section 1.03	Rules of Construction	30

Article 2 THE NOTES
Section 2.01	Form and Dating	30
Section 2.02	Execution and Authentication	31
Section 2.03	Registrar and Paying Agent	33
Section 2.04	Paying Agent to Hold Money in Trust	32
Section 2.05	Holder Lists	32
Section 2.06	Transfer and Exchange	32
Section 2.07	Replacement Notes	44
Section 2.08	Outstanding Notes	44
Section 2.09	Treasury Notes	44
Section 2.10	Temporary Notes	45
Section 2.11	Cancellation	45
Section 2.12	Defaulted Interest	45
Section 2.13	Issuance of Additional Notes	45
Article 3 REDEMPTION AND PREPAYMENT
Section 3.01	Notices to Trustee	46
Section 3.02	Selection of Notes to Be Redeemed or Purchased	46
Section 3.03	Notice of Redemption	46
Section 3.04	Effect of Notice of Redemption	47
Section 3.05	Deposit of Redemption or Purchase Price	47
Section 3.06	Notes Redeemed or Purchased in Part	48
Section 3.07	Optional Redemption	48
Section 3.08	Mandatory Redemption	50
Section 3.09	Special Mandatory Redemption	50
Article 4 COVENANTS
Section 4.01	Payment of Notes	50
Section 4.02	Maintenance of Office or Agency	51
Section 4.03	Reports to Holders	51
Section 4.04	Compliance Certificate	53
Section 4.05	Taxes	54
Section 4.06	Stay, Extension and Usury Laws	54

Section 4.07	Restricted Payments	54
Section 4.08	Dividend and Other Payment Restrictions Affecting Guarantors	58
Section 4.09	Incurrence of Additional Indebtedness	60
Section 4.10	Asset Sales	64
Section 4.11	Transactions with Affiliates	67
Section 4.12	Liens	69
Section 4.13	[RESERVED]	70
Section 4.14	Corporate Existence	70
Section 4.15	Offer to Repurchase Upon Change of Control	70
Section 4.16	Additional Amounts	72
Section 4.17	Limited Condition Transactions; Financial Calculations	75
Section 4.18	Additional Subsidiary Note Guarantees	75
Section 4.19	Designation of Restricted and Unrestricted Subsidiaries	76
Section 4.20	Changes in Covenants When Notes Rated Investment Grade	76
Article 5 SUCCESSORS
Section 5.01	Merger, Consolidation and Sale of Assets	78
Section 5.02	Successor Corporation Substituted	80
Article 6 DEFAULTS AND REMEDIES
Section 6.01	Events of Default	80
Section 6.02	Acceleration	82
Section 6.03	Other Remedies	83
Section 6.04	Waiver of Past Defaults	83
Section 6.05	Control by Majority	83
Section 6.06	Limitation on Suits	84
Section 6.07	Rights of Holders to Receive Payment	84
Section 6.08	Collection Suit by Trustee	84
Section 6.09	Trustee May File Proofs of Claim	84
Section 6.10	Priorities	85
Section 6.11	Undertaking for Costs	85
Article 7 TRUSTEE
Section 7.01	Duties of Trustee	85
Section 7.02	Rights of Trustee	86
Section 7.03	Individual Rights of Trustee	88
Section 7.04	Trustee’s Disclaimer	88
Section 7.05	Notice of Defaults	88
Section 7.06	[RESERVED]	88
Section 7.07	Compensation and Indemnity	88
Section 7.08	Replacement of Trustee	89
Section 7.09	Successor Trustee by Merger, etc.	90
Section 7.10	Eligibility; Disqualification	90

ii

Page

Article 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	90
Section 8.02	Legal Defeasance and Discharge	90
Section 8.03	Covenant Defeasance	91
Section 8.04	Conditions to Legal or Covenant Defeasance	91
Section 8.05	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	92
Section 8.06	Repayment to Company	93
Section 8.07	Reinstatement	93
Article 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01	Without Consent of Holders	93
Section 9.02	With Consent of Holders	94
Section 9.03	Revocation and Effect of Consents	96
Section 9.04	Notation on or Exchange of Notes	96
Section 9.05	Trustee to Sign Amendments, etc	97
Article 10 NOTE GUARANTEES
Section 10.01	Guarantee	97
Section 10.02	Limitation on Guarantor Liability	98
Section 10.03	Execution and Delivery of Supplemental Indenture	98
Section 10.04	Guarantors May Consolidate, etc., on Certain Terms	99
Section 10.05	Releases	99
Article 11 satisfaction and discharge
Section 11.01	Satisfaction and Discharge	100
Section 11.02	Application of Trust Money	101
Article 12 MISCELLANEOUS
Section 12.01	[RESERVED]	102
Section 12.02	Notices	102
Section 12.03	Communication by Holders with Other Holders	103
Section 12.04	Certificate and Opinion as to Conditions Precedent	103
Section 12.05	Statements Required in Certificate or Opinion	103
Section 12.06	Rules by Trustee and Agents	103
Section 12.07	No Personal Liability of Directors, Officers, Employees and Stockholders	103
Section 12.08	Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury	104
Section 12.09	No Adverse Interpretation of Other Agreements	104
Section 12.10	Successors	104
Section 12.11	Severability	105
Section 12.12	Counterpart Originals	105
Section 12.13	Table of Contents, Headings, etc.	105

iii

Page

Section 12.14	USA PATRIOT Act	105
Section 12.15	Interest Act (Canada)	105
Section 12.16	Usury Saving Clause	105
Section 12.17	Limitations Act, 2002 (Ontario)	106

EXHIBITS

Exhibit A	FORM OF NOTE	A-1
Exhibit B	FORM OF CERTIFICATE OF TRANSFER	B-1
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE	C-1
Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR	D-1
Exhibit E	FORM OF SUPPLEMENTAL INDENTURE	E-1

iv

INDENTURE dated as of March 15, 2023 among Ritchie Bros. Holdings Inc., a Washington corporation, Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, and U.S. Bank Trust Company, National Association, a national banking association, as trustee.

The Company (as defined herein) and the Trustee (as defined herein) agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of the 7.750% Senior Notes due 2031 (the “Notes”):

Article 1
DEFINITIONS AND INCORPORATION
BY REFERENCE

Section 1.01     Definitions.

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

“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of Parent or at the time it amalgamates, merges or consolidates with or into Parent or any of its Restricted Subsidiaries or that is assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of Parent or such acquisition, amalgamation, merger or consolidation.

“Additional Notes” means Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.13 and 4.09 hereof, as part of the same series as the Initial Notes.

“Acquisition” means the acquisition of IAA pursuant to the Merger Agreement.

“Acquisition Closing Date” means the date that the Acquisition is consummated.

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

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

“Applicable Calculation Date” means the applicable date of the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Fixed Charge Coverage Ratio, Consolidated Debt Ratio and Consolidated Secured Debt Ratio.

“Applicable Measurement Period” means the most recently completed four consecutive fiscal quarters of Parent immediately preceding the Applicable Calculation Date for which internal financial statements are available.

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“Applicable Premium” means, with respect to a Note at any redemption date, the greater of (1) 1.0% of the principal amount of such Note and (2) the excess of (a) the present value at such redemption date of (i) the redemption price of such Note on March 15, 2026 (such redemption price being that described in Section 3.07(b) hereof) plus (ii) all required remaining scheduled interest payments due on such Note through March 15, 2026, computed using a discount rate equal to the Treasury Rate plus 50 basis points; over (b) the then principal amount of such Note on such redemption date. Calculation of the Applicable Premium will be made by the Company or on behalf of the Company by such Person as the Company shall designate; provided, however, that such calculation, confirmation thereof or determination of the Treasury Rate referenced below, shall not be a duty or obligation of the Trustee.

“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/or Clearstream that apply to such transfer or exchange.

“Asset Acquisition” means (1) an Investment by Parent or any Restricted Subsidiary of Parent in any other Person pursuant to which such Person shall become a Restricted Subsidiary of Parent or any Restricted Subsidiary of Parent, or shall be amalgamated or merged with or into Parent or any Restricted Subsidiary of Parent, or (2) the acquisition by Parent or any Restricted Subsidiary of Parent of the assets of any Person (other than a Restricted Subsidiary of Parent) that constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business.

“Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease, assignment or other transfer for value by Parent or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than Parent or a Restricted Subsidiary of Parent of: (1) any Capital Stock of any Restricted Subsidiary of Parent (other than directors’ qualifying shares and shares issued to foreign nationals as required under applicable Law); or (2) any other property or assets of Parent or any Restricted Subsidiary of Parent other than in the ordinary course of business; provided, however, that Asset Sales or other dispositions shall not include:

(a)            a transaction or series of related transactions for which Parent or its Restricted Subsidiaries receive aggregate consideration of less than $25.0 million;

(b)            the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of Parent or the Company as permitted under Section 5.01 hereof;

(c)            the sale, discount or other disposition of inventory;

(d)            the sale or discount of accounts receivable in connection with the compromise or collection thereof or in the ordinary course of business;

(e)            disposals or replacements of obsolete, worn-out or no longer useful equipment or machinery;

(f)             the sale or other disposition of cash or Cash Equivalents;

(g)            any Restricted Payment that is not prohibited by Section 4.07 or any Restricted Payment that constitutes a Permitted Investment;

(h)            the abandonment of Intellectual Property Rights no longer used or useful in the conduct of the business of Parent or any of its Subsidiaries;

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(i)             licenses, sublicenses, leases or subleases granted to others (including licenses of Intellectual Property Rights), and terminations thereof not interfering in any material respect with the business of Parent and its Subsidiaries;

(j)             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 reasonably promptly applied to the purchase price of such replacement property;

(k)            the surrender or waiver of contractual rights and settlement or waiver of contractual or litigation claims by Parent or any Subsidiary;

(l)             the unwinding of any Interest Swap Obligation or Currency Agreements pursuant to its terms;

(m)           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;

(n)            Dispositions of property or assets subject to a Recovery Event;

(o)            Dispositions made in connection with the consummation of the Acquisition that are necessary or advisable to comply with applicable Law or to avoid any impediment to the consummation of the Acquisition under any applicable Law;

(p)            Dispositions of real property so long as the aggregate net book value of all real property sold or otherwise disposed of by Parent and its Restricted Subsidiaries pursuant to this clause (p) in any fiscal year of Parent shall not exceed $200.0 million, and during the term of this Indenture, shall not exceed $400.0 million;

(q)            any disposition of property or assets, or the issuance of securities, by a Restricted Subsidiary to Parent or the Company or by Parent or the Company to a Restricted Subsidiary or a Restricted Subsidiary to a Restricted Subsidiary;

(r)             the granting of, and dispositions in connection with, Permitted Liens;

(s)            foreclosure, condemnation, expropriation or any similar action with respect to any property or other asset of Parent or any of its Restricted Subsidiaries;

(t)             any disposition of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(u)            any surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;

(v)            Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions;

(w)            a transaction or series of related transactions for which Parent or its Restricted Subsidiaries receive aggregate consideration not to exceed $200.0 million in any fiscal year and $400.0 million during the term of this Indenture;

(x)            Specified Property Sales; and

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(y)            a sale, assignment or other transfer of Receivables or Receivables Assets.

In the event that a transaction (or a portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, Parent or the Company, in its sole discretion, will be entitled to divide and classify and reclassify such transaction (or a portion thereof) as an Asset Sale and/or one or more the types of permitted Restricted Payments or Permitted Investments.

“Attributable Indebtedness” means, with respect to any Person on any date, in respect of any finance lease, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“Bankruptcy Law” means the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Canada Business Corporations Act, the Winding-Up and Restructuring Act (Canada), Title 11, U.S. Code and any other applicable insolvency, corporate arrangement or restructuring or other similar Law of any jurisdiction including any Law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it.

“Beneficial Holders” means any person who holds a beneficial interest in Notes as shown on the books of the Depositary or a participant of such Depositary.

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

“Board of Directors” means, as to any Person, the board of directors of such Person or any duly authorized committee thereof or, with respect to any Person that is not a corporation, the Person or Persons performing corresponding functions.

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks or financial institutions are authorized to close under the Laws of, or are in fact closed in, the State of New York, the Province of Ontario or the place of payment.

“Canadian Legend” means the legend set forth in Section 2.06(f)(3) hereof, which is required to be placed on all Notes issued under this Indenture.

“Canadian Restricted Subsidiary” means any Restricted Subsidiary that is organized under the Laws of Canada or any province or territory thereof.

“Capital Markets Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC or (c) a private placement to institutional accredited investors.

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“Capital Stock” means:

(1)            with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; and

(2)            with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as a finance lease under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.

“Cash Equivalents” means:

(1)            United States dollars, Canadian dollars, Euros, British Pounds or any national currency of any participating member state of the European Union or such local currencies held by Parent and its Subsidiaries from time to time in the ordinary course of business;

(2)            marketable direct obligations issued by, or unconditionally guaranteed by, the United States, any Canadian Governmental Authority, Canadian crown corporations, the Netherlands, the United Kingdom, Germany, Spain, France or Australia;

(3)            marketable direct obligations issued by any agency of the United States or any Canadian Governmental Authority and backed by the full faith and credit of the United States or Canada, in each case maturing within one year from the date of acquisition thereof;

(4)            marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, from any Rating Agency selected by the Company as a replacement Rating Agency);

(5)            commercial paper or corporate bonds maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency);

(6)            certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the Laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250.0 million;

(7)            repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (2) above entered into with any bank meeting the qualifications specified in clause (6) above;

(8)            securities issued or directly and fully guaranteed or insured by any state, commonwealth or territory of the United States of America or any province or territory of Canada or any agency, subdivision or instrumentality thereof or by any foreign government (and that at the time of acquisition have an investment grade rating from S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency)) having maturities of not more than two years after the date of acquisition;

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(9)            marketable short term money market and similar securities having the highest rating obtainable from S&P or Moody’s (or, in each case, if such Rating Agency ceases to rate such securities, any Rating Agency selected by the Company as a replacement Rating Agency) at the time of acquisition and in each case maturing within two years after the date of acquisition;

(10)          Investments in money market funds that invest substantially all their assets in securities of the types described in clauses (1) through (9) above; and

(11)          Foreign Cash Equivalents.

“Cash Management Agreement” means any agreement to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Cash Pooling Arrangements” means any cash pooling arrangements (including cash concentration arrangements and notional cash pooling arrangements and any replacement thereof from time to time) maintained by Subsidiaries of Parent organized outside of the United States or Canada (or by Parent or Subsidiaries of Parent organized in the United States or Canada to the extent relating solely to the accounts of Parent or such Subsidiaries located outside of the United States or Canada) arising under the terms of a customary agreement with a financial institution in order to facilitate the efficient deployment of cash.

“Change of Control” means the occurrence of one or more of the following events:

(1)            any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of Parent to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”), together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of this Indenture);

(2)            the approval by the holders of Capital Stock of Parent of any plan or proposal for the liquidation or dissolution of Parent (whether or not otherwise in compliance with the provisions of this Indenture);

(3)            any Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of Parent; or

(4)            Parent ceases to own, directly or indirectly, 100% of the Capital Stock of the Company (other than director qualifying shares).

“Chinese Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of the People’s Republic of China, in an aggregate principal amount at any time outstanding not to exceed $10.0 million.

“Clearstream” means Clearstream Banking, S.A. or any successor securities clearing agency.

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“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, and includes all series and classes of such common stock.

“Company” means Ritchie Bros. Holdings Inc., a Washington corporation, and any and all successors thereto.

“Consolidated Debt Ratio” as of any date of determination means, the ratio of (1) Consolidated Total Indebtedness of Parent and its Restricted Subsidiaries as of the end of the Applicable Measurement Period to (2) Parent’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”

“Consolidated EBITDA” means, for any period, for Parent and its Restricted Subsidiaries on a consolidated basis, an amount equal to:

(a)            Consolidated Net Income for such period; plus

(b)            the following to the extent deducted in calculating such Consolidated Net Income (other than clauses (iv) and (v)):

(i)            Consolidated Interest Expense for such period;

(ii)            federal, state, local and foreign income tax expense for such period;

(iii)          depreciation and amortization expense for such period;

(iv)          expected cost savings, operating expense reductions and synergies for such period related to the consummation of the Acquisition projected by Parent in good faith to result from actions with respect to which substantial steps have been taken, will be taken, or are expected to be taken; provided that (A) such cost savings, operating expense reductions and synergies are expected to be realized (in the good faith determination of Parent) within 24 months after the closing date of the Acquisition, which are reasonably identifiable and factually supportable and (B) amounts added-back for any period pursuant to this clause (iv) shall not exceed $125.0 million during the term of this Indenture (it being understood that no addbacks pursuant to this clause (iv) shall be permitted subsequent to 24 months after the closing date of the Acquisition);

(v)           expected cost savings, operating expense reductions and synergies for such period related to mergers and other business combinations, acquisitions, Dispositions, restructuring, or cost savings initiatives which are reasonably identifiable and factually supportable and other similar initiatives and projected by Parent in good faith to result from actions with respect to which substantial steps have been taken, will be taken, or are expected to be taken; provided that (A) such cost savings, operating expense reductions and synergies are expected to be realized (in the good faith determination of Parent) within 24 months after such transaction or initiative is consummated and (B) amounts added-back for any period pursuant to this clause (v) shall not exceed 10% of Consolidated EBITDA for such period (calculated prior to giving effect to this clause (v)) (it being understood that no addbacks pursuant to this clause (v) with respect to any specific merger, business combination, acquisition, Disposition, restructuring or cost savings initiative shall be permitted subsequent to 24 months after the applicable merger, business combination, acquisition, Disposition, restructuring or cost savings initiative);

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(vi)          non-cash losses, charges and expenses (including non-cash compensation charges but excluding (A) losses, charges and expenses to the extent representing an accrual of or reserve for cash losses, charges or expenses in any future period and (B) write-downs or reserves of account receivables or inventory);

(vii)         unusual or non-recurring losses, charges and expenses in an aggregate amount not to exceed $50.0 million during such period;

(viii)        cash restructuring and related charges and business optimization expenses in an aggregate amount not to exceed $50.0 million during such period;

(ix)            unrealized losses due to foreign exchange adjustments (including losses and expenses in connection with currency and exchange rate fluctuations);

(x)            costs and expenses in connection with the Senior Secured Credit Facilities, the Secured Notes Indenture, this Indenture, the proposed acquisition of Euro Auctions and the Acquisition (including one-time expenses associated with vested and unvested options);

(xi)           expenses or charges related to any offering of equity interests, Permitted Investment, acquisition (other than the Acquisition), Disposition, recapitalization or incurrence of permitted Indebtedness (whether or not consummated), including non-operating or non-recurring professional fees, costs and expenses related thereto in an aggregate amount not to exceed $50.0 million during such period; and

(xii)          losses from discontinued operations and non-ordinary course Dispositions; minus

(c)            the following to the extent included in calculating such Consolidated Net Income: (i) non-cash income or gains, (ii) unrealized gains due to foreign exchange adjustments (including gains in connection with currency and exchange rate fluctuations) and (iii) income or gains from discontinued operations and non-ordinary course Dispositions.

“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the Applicable Measurement Period to Consolidated Fixed Charges paid in cash for the Applicable Measurement Period.

For purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(1)            the incurrence or repayment of any Indebtedness of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Applicable Measurement Period or at any time subsequent to the last day of the Applicable Measurement Period and on or prior to the Applicable Calculation Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Applicable Measurement Period; and

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(2)            any asset sales or Asset Acquisitions, including any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated under the Exchange Act attributable to the assets that are the subject of the Asset Acquisition or asset sale during the Applicable Measurement Period) occurring during the Applicable Measurement Period or at any time subsequent to the last day of the Applicable Measurement Period and on or prior to the Applicable Calculation Date, as if such asset sale or Asset Acquisition (including the incurrence or assumption of any such Acquired Indebtedness) occurred on the first day of the Applicable Measurement Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such other Indebtedness that was so guaranteed.

Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of the Consolidated Fixed Charge Coverage Ratio:

(1)            interest on outstanding Indebtedness determined on a fluctuating basis as of the Applicable Calculation Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Applicable Calculation Date; and

(2)            notwithstanding clause (1) of this paragraph, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“Consolidated Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of:

(1)            Consolidated Interest Expense; plus

(2)            all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary; plus

(3)            all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Capital Stock.

“Consolidated Interest Expense” means, with respect to any Person for any period, the sum of, without duplication:

(1)            the aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including: (a) any amortization of debt discount and amortization or write off of deferred financing costs; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest; and (d) the interest portion of any deferred payment obligation; and

(2)            the interest component of Capitalized Lease Obligations paid and/or scheduled to be paid by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP;

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provided, that, notwithstanding anything herein to the contrary, interest in connection with the Notes and the Secured Notes shall not constitute Consolidated Interest Expense to the extent (and for so long as) the Notes and the Secured Notes have been funded into escrow to fund the Acquisition and remain in escrow.

“Consolidated Net Income” means, for any period, for Parent and its Subsidiaries on a consolidated basis, net income (or loss) for such period; provided that Consolidated Net Income shall exclude:

(a)            extraordinary gains and extraordinary losses for such period,

(b)            solely for the purpose of determining the amount available for Restricted Payments under Section 4.07(a)(iii)(w), any net income (loss) of any Restricted Subsidiary (other than Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company, Parent or a Guarantor by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than restrictions that have been waived or otherwise released), except that Parent’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary to the Company, Parent or another Restricted Subsidiary as a dividend or other distribution (subject in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause); and

(c)            any income (or loss) for such period of any Person if such Person is not a Subsidiary, except that Parent’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Parent or a Subsidiary as a dividend or other distribution.

“Consolidated Secured Debt Ratio” as of any date of determination means, the ratio of (1) Consolidated Total Secured Indebtedness of Parent and its Restricted Subsidiaries as of the end of the Applicable Measurement Period to (2) Parent’s Consolidated EBITDA for the Applicable Measurement Period, in each case with such pro forma adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge Coverage Ratio.”

“Consolidated Total Assets” means the total consolidated assets of Parent and its Restricted Subsidiaries, as shown on the most recent consolidated balance sheet of Parent and its Restricted Subsidiaries, calculated on a pro forma basis after giving effect to any subsequent acquisition or Disposition of a Person or business.

“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of Parent and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, obligations in respect of purchase money Indebtedness and Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments; (2) all direct or contingent obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments; (3) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) solely to the extent such obligation is evidenced by a note or similar instrument and such obligation is included as a liability on the balance sheet of Parent and its Subsidiaries in accordance with GAAP; and (4) all Guarantees with respect to Indebtedness of the types specified in clauses (1) through (3) above of another Person.

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“Consolidated Total Secured Indebtedness” means, as of any date of determination means, the aggregate amount of all outstanding Consolidated Total Indebtedness of Parent and its Restricted Subsidiaries that is secured by Liens as of the end of the Applicable Measurement Period.

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

“Corporate Trust Office of the Trustee” means the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.

“Credit Facilities” means one or more debt facilities, including the Senior Secured Credit Facilities, or other financing arrangements (including commercial paper facilities or indentures) providing for revolving credit loans, term loans, receivables financing, bankers acceptances, letters of credit, debt securities or other indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings, replacements or refinancings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof, whether or not by the same or any other agent, investor, lender or group of lenders (whether or not such added or substituted parties are banks or other institutional lenders), in each case, whether or not any such amendment, supplement, modification, extension, renewal, restatement, refunding, replacement or refinancing occurs simultaneously with the termination or repayment of a prior Credit Facility.

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

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

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

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

“Depositary” means Cede & Co. and such other Person as is designated in writing by Parent or the Company and acceptable to the Trustee to act as depository in respect of one or more Notes.

“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by Parent or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as “Designated Non-Cash Consideration” pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or fundamental change) on or prior to the final maturity date of the Notes; provided, however, only the portion of Capital Stock which is so redeemable or repurchasable prior to such date will be deemed to be Disqualified Capital Stock. For the avoidance of doubt, Parent’s Series A preferred stock shall not be considered Disqualified Capital Stock.

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“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by Parent or any Subsidiary, including any Sale and Leaseback Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Recovery Event.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, and all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person.

“Equity Offering” means any public or private offering of Qualified Capital Stock of Parent (other than offerings registered on Form S-8 or any successor form).

“Escrow Account” has the meaning assigned to it in the Escrow Agreement.

“Escrow Agent” has the meaning assigned to it in the Escrow Agreement.

“Escrow Agreement” means that certain Escrow Agreement, dated as of the date hereof, by and among the Company, the Trustee and the Escrow Agent, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Escrow End Date” means September 30, 2023.

“Escrow Release” means the release of all of the Escrowed Property from the Escrow Account and the release of the Trustee’s Lien thereon and security interest therein pursuant to and in accordance with the terms of the Escrow Agreement.

“Escrow Release Date” means the date on which the Escrow Release occurs.

“Escrowed Property” has the meaning assigned to it in the Escrow Agreement.

“Euro Auctions” means Euro Auctions Limited, William Keys & Sons Holdings Limited, Equipment & Plant Services Ltd and Equipment Sales Ltd, each being a private limited company incorporated in Northern Ireland.

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, or any successor securities clearing agency

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

“Existing Notes” means Parent’s existing 5.375% Senior Notes due 2025.

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“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors of Parent or the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of Parent or the Company.

“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the Issue Date (including regulations and guidance thereunder), (b) any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with, (c) any agreement (including any intergovernmental agreement) entered into in connection therewith, including pursuant to Section 1471(b)(1) of the Code or (d) any Law, regulation, rule or practice implementing an intergovernmental agreement or approach thereto or therewith.

“Foreign Cash Equivalents” means certificates of deposit or bankers acceptances of any bank organized under the Laws of the United Kingdom, Canada, Singapore, Australia, China or any country that is a member of the European Union, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof, in each case with maturities of not more than one year from the date of acquisition.

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

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

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with the applicable provisions of this Indenture.

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States, Canada or the United Kingdom (including, in each case, any agency or instrumentality thereof) for the payment of which obligations or guarantees the full faith and credit of the United States, Canada or the United Kingdom is pledged and which are not callable or redeemable at the issuer’s option.

“Governmental Authority” means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including the Financial Conduct Authority, the Prudential Regulation Authority, any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

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“Guarantor” means: Parent and each of the Company’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor; provided that any Person constituting a Guarantor shall cease to constitute a Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture. Any entity that is (a) a CFC, (b) a U.S. Person all or substantially all of the assets of which consist of the Equity Interests of one or more CFCs or (c) a U.S. Person that is a Subsidiary of a CFC, will not provide a Guarantee, except in each case to the extent as agreed under the Senior Secured Credit Facilities (each such entity not required to provide a Guarantee under clause (a), (b) or (c), an “Excluded CFC Entity”); provided, that neither Ironplanet Mexico, S. de R.L. de C.V. nor Synetiq Holdings Limited shall be considered an Excluded CFC Entity. For this purpose (x) a “CFC” means any controlled foreign corporation for U.S. federal income tax purposes that is owned (within the meaning of Section 958(a) of the Code) by either the Company or any Affiliate of the Company that is a U.S. Person and a corporation for U.S. federal income tax purposes, and (y) a “U.S. Person” means any United States person (within the meaning of Section 7701(a)(30) of the Code).

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

“IAA” means IAA, Inc., a Delaware corporation.

“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 issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.

“Indebtedness” means, with respect to any Person, without duplication:

(1)            all Obligations of such Person for borrowed money;

(2)            all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(3)            all Capitalized Lease Obligations of such Person;

(4)            all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business and any earn-out obligation until such obligation becomes a liability on the balance sheet of Parent and its Restricted Subsidiaries in accordance with GAAP and if not paid when due and payable);

(5)            all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction which is issued in respect of Indebtedness referred to in clauses (1) through (4) above and clause (8) below;

(6)            guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;

(7)            all Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured;

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(8)            all net Obligations under Currency Agreements and interest swap agreements of such Person; and

(9)            all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any.

For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by Parent or the Company. In addition, the term “Indebtedness” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller, (iii) accrued expenses and (iv) obligations in respect of operating leases. For all purposes hereof, the Indebtedness of Parent and its Wholly Owned Subsidiaries shall exclude intercompany liabilities arising from their cash management and accounting operations and intercompany loans, advances or Indebtedness among Parent and its Wholly Owned Subsidiaries having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business.

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

“Independent Financial Advisor” means a firm: (1) that does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in Parent or the Company and (2) that, in the judgment of the Board of Directors of Parent or the Company, is otherwise independent and qualified to perform the task for which it is to be engaged.

“Indian Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of India, in an aggregate principal amount at any time outstanding not to exceed $5.0 million.

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

“Initial Notes” means the $800.0 million aggregate principal amount of Notes issued by the Company on the date hereof under this Indenture.

“Initial Purchasers” means the initial purchasers party to the Purchase Agreement.

“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 are not also QIBs.

“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include interest rate swaps, caps, floors, collars and similar agreements.

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“International Restricted Subsidiary” means any Restricted Subsidiary that is not a U.S. Restricted Subsidiary.

“Investment” means, with respect to any Person, any direct or indirect loan or other extension of credit (including a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other Person. “Investment” shall exclude extensions of trade credit by Parent and its Restricted Subsidiaries on commercially reasonable terms. If Parent or any Restricted Subsidiary of Parent sells or otherwise disposes of any Common Stock of any direct or indirect Wholly Owned Restricted Subsidiary of Parent such that, after giving effect to any such sale or disposition, Parent no longer owns, directly or indirectly, 100% of the outstanding Common Stock of such Restricted Subsidiary, Parent shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Common Stock of such Restricted Subsidiary not sold or disposed of.

For purposes of Section 4.07 and Section 4.19:

(1)            “Investment” will include the portion (proportionate to Parent’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary of Parent at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Parent will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) Parent’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to Parent’s equity interest in such Subsidiary) of the fair market value of the net assets (as conclusively determined by the Board of Directors of Parent or the Company in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and

(2)            any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of Parent or the Company.

“Intellectual Property Rights” means, collectively the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights.

“Investment Grade Rating” means a rating of Baa3 or better by Moody’s and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).

“Issue Date” means March 15, 2023.

“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial 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, in each case whether or not having the force of Law.

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“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).

“Limited Condition Transaction” means (1) any acquisition or other Investment, including by way of merger, amalgamation or consolidation, by Parent or one or more of its Restricted Subsidiaries, with respect to which Parent or such Restricted Subsidiaries have entered into an agreement or are otherwise contractually committed to consummate and the consummation of which is not expressly conditioned upon the availability of, or on obtaining, financing from a third party non-Affiliate, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock, (3) any Restricted Payment requiring irrevocable notice in advance thereof and (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale.”

“Merger Agreement” means the Agreement and Plan of Merger and Reorganization by and among Parent, the Company, Impala Merger Sub I, LLC, Impala Merger Sub II, LLC and IAA (together with all exhibits and schedules thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Acquisition Closing Date).

“Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.

“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by Parent or any of its Restricted Subsidiaries from such Asset Sale net of:

(1)            out-of-pocket expenses and fees relating to such Asset Sale (including legal, accounting and investment banking fees, brokerage and sales commissions, and survey, title and recording expenses, transfer taxes and expenses incurred for preparing such asset for sale, payments made in order to obtain a necessary consent or required by applicable Law, any relocation expenses incurred as a result of the Asset Sale and other fees and expenses, including title and recordation expenses);

(2)            taxes paid or payable, or estimated in good faith to be payable as a result of the Asset Sale, after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;

(3)            repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale; and

(4)            appropriate amounts to be provided by Parent or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by Parent or any Restricted Subsidiary, as the case may be, after such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale.

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

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

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“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“Obligations” means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Offering Circular” means the offering circular, dated March 1, 2023, pursuant to which the Initial Notes were offered to potential purchasers.

“Officer” means, with respect to any Person, any of the following: the Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, General Counsel, Vice President, Treasurer, Secretary, Assistant Secretary or Assistant Treasurer (including interim officers).

“Officer’s Certificate” means, with respect to any Person, a certificate signed on behalf of such Person by an Officer of such Person, which meets the requirements set forth in this Indenture. Unless the context otherwise requires, “Officer’s Certificate” refers to an Officer’s Certificate of the Company.

“Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or counsel to Parent or the Company, or other counsel who is reasonably acceptable to the Trustee.

“Parent” means Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation and the parent of the Company.

“Pari Passu Indebtedness” means any Indebtedness of Parent, the Company or any other Guarantor that is equal in right of payment with the Notes or the Note Guarantee of such Guarantor, as applicable.

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

“Permitted Intercompany Activities” means any transactions between or among Parent and its Restricted Subsidiaries that are entered into in the ordinary course of business of Parent and its Restricted Subsidiaries and, in the good faith judgment of Parent are necessary or advisable in connection with the ownership or operation of the business of Parent and its Restricted Subsidiaries, including, but not limited to, (i) payroll, cash management, cash pooling, purchasing, tax, accounting, insurance and hedging arrangements; and (ii) management, technology and licensing arrangements.

“Permitted Investments” means:

(1)            Investments by Parent or any Restricted Subsidiary of Parent in any Person that is or will become after such Investment a Restricted Subsidiary of Parent or that will merge, amalgamate or consolidate into Parent or a Restricted Subsidiary of Parent;

(2)            Investments in Parent by any Restricted Subsidiary of Parent;

(3)            Investments in cash and Cash Equivalents;

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(4)            loans and advances to employees and officers of Parent and its Subsidiaries in the ordinary course of business for reasonable and customary business-related purposes not in excess of $30.0 million at any one time outstanding;

(5)            Currency Agreements and Interest Swap Obligations entered into in the ordinary course of Parent’s or its Restricted Subsidiaries’ businesses and otherwise in compliance with this Indenture;

(6)            additional Investments in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA of the Applicable Measurement Period;

(7)            Investments received (x) pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditors, suppliers or customers or in good faith settlement of delinquent obligations of such trade creditors, suppliers or customers; (y) as a result of the foreclosure by Parent or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title, or (z) as a result of litigation, or other disputes with Persons who are not Affiliates of Parent;

(8)            Investments made by Parent or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10;

(9)            Investments represented by guarantees that are otherwise permitted under this Indenture;

(10)          Investments the payment for which is Qualified Capital Stock of Parent;

(11)          Investments by Parent consisting of obligations of one or more officers, directors or other employees of Parent or any of its Subsidiaries in connection with such officers’, directors’ or employees’ acquisition of shares of capital stock of the Company so long as no cash is paid by the Company or any of its Subsidiaries to such officers, directors or employees in connection with the acquisition of any such obligations;

(12)          any Investment (x) existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date, (y) solely with respect to IAA and its subsidiaries, existing on the Escrow Release Date, so long as such Investment was not made in contemplation of the Acquisition or (z) consisting of any replacement, refinancing, extension, modification or renewal of any Investment existing on the Issue Date (or, with respect to IAA and its subsidiaries, the Escrow Release Date); provided that the amount of any such Investment may only be increased (i) as required by the terms of such Investment as in existence on the Issue Date (or, with respect to IAA and its subsidiaries, the Escrow Release Date) or (ii) as otherwise permitted under this Indenture;

(13)          stock, obligations or securities received in satisfaction of judgments;

(14)          advances, loans, rebates and extensions of credit (including the creation of receivables) to suppliers, customers and vendors, and performance guarantees, in each case in the ordinary course of business;

(15)          Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(16)          securities issued by the World Bank or Federal Bank for Reconstruction and Development;

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(17)          Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

(18)          (i) intercompany advances among Parent and its Subsidiaries arising from their cash management and accounting operations, (ii) intercompany loans, advances, or Indebtedness among Parent and its Subsidiaries having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and (iii) to the extent constituting Investments, obligations permitted under Section 4.09(b)(7)(c);

(19)          advances of payroll payments to employees in the ordinary course of business;

(20)          Investments in prepaid expenses, negotiable instruments held for collection and lease and utility and worker’s compensation deposits provided to third parties in the ordinary course of business;

(21)          (i) Investments made in accordance with Parent’s investment policy as in effect from time to time, and (ii) Investments funded with net proceeds of any issuance of Capital Stock by Parent;

(22)          Investments in connection with or related to the Transactions;

(23)          promissory notes and other noncash consideration received in connection with any Disposition permitted by this Indenture;

(24)          Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

(25)          Investments made in connection with Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions;

(26)          additional Investments so long as (i) immediately after giving effect to such Investment, no Event of Default exists, and (ii) immediately after giving pro forma effect to any such Investment, the Consolidated Debt Ratio shall be less than or equal to 3.25 to 1.00;

(27)          to the extent constituting Investments, loans provided by Parent or any Restricted Subsidiary to third parties (and secured by such third party’s equipment) consistent with the line of business engaged in by Parent as of the Issue Date; and

(28)          (i) Investments in any Person in connection with a Receivables Facility; provided, however, that such Investment is in the form of a purchase money note, contribution of additional receivables or any equity interest, and (ii) contributions of Receivables Assets to any Person in connection with a Receivables Facility.

“Permitted Liens” means the following types of Liens:

(1)            Liens for taxes, assessments or governmental charges or claims either (a) not delinquent for a period of more than 30 days or (b) are being contested in good faith by appropriate proceedings and as to which Parent or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP;

(2)            statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen and repairmen, construction Liens and other Liens imposed by Law (including Liens imposed under Laws governing the administration of Canadian pension plans) or pursuant to customary reservations or retentions of title incurred in the ordinary course of business for sums not yet delinquent for a period of more than 30 days or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP has been made in respect thereof;

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(3)            Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business in connection therewith, and pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of insurance carriers or to secure the performance of tenders, trade contracts, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (including those to secure health safety and environmental obligations and exclusive of obligations for the payment of borrowed money);

(4)            judgment Liens securing the payment of money (or appeal or other surety bonds relating to such judgments) not giving rise to an Event of Default;

(5)            easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of the applicable Person;

(6)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(7)            Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

(8)            Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of Parent or any of its Restricted Subsidiaries, including rights of offset and set-off;

(9)            Liens securing Capitalized Lease Obligations and Purchase Money Indebtedness permitted pursuant to Section 4.09(b)(13) hereof; provided, however, that in the case of Purchase Money Indebtedness (a) the Indebtedness shall not be secured by any property or assets of Parent or any Restricted Subsidiary of Parent other than the property and assets so acquired or constructed and the proceeds thereof and (b) the Lien securing such Indebtedness shall be created within 270 days of such acquisition or construction or, in the case of a refinancing of any Purchase Money Indebtedness, within 270 days of such refinancing;

(10)          Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture;

(11)          Liens securing Indebtedness under Currency Agreements;

(12)          Liens securing Acquired Indebtedness incurred in accordance with Section 4.09 hereof; provided that:

 (a)            such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent; and

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 (b)            such Liens do not extend to or cover any property or assets of Parent or of any of its Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of Parent or a Restricted Subsidiary of Parent and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by Parent or a Restricted Subsidiary of Parent;

(13)          Liens on assets of a Restricted Subsidiary of Parent that is not a Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under this Indenture;

(14)          leases, subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of Parent and its Restricted Subsidiaries;

(15)          (i) banker’s Liens, rights of netting and/or setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary course of business (including for the avoidance of doubt under any Cash Pooling Arrangements) and (ii) Liens arising from Cash Pooling Arrangements or granted in support thereof;

(16)          any interest of title of a lessor under, and Liens arising from filing UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to leases;

(17)          Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of custom duties in connection with the importation of goods;

(18)          rights of customers with respect to inventory which arise from deposits and progress payments made in the ordinary course of business;

(19)          Liens on assets of International Restricted Subsidiaries (other than Canadian Restricted Subsidiaries) securing Indebtedness permitted pursuant to Section 4.09(b)(14) hereof;

(20)          additional Liens in an aggregate amount at the time of incurrence not to exceed the greater of (A) $330.0 million and (B) 30% of Consolidated EBITDA for the Applicable Measurement Period;

(21)          at all times prior to the Escrow Release Date, Liens to secure Obligations under the escrow arrangements in respect of the Notes;

(22)          Liens (a) existing as of the Issue Date or (b) solely with respect to IAA and its subsidiaries, existing as of the Escrow Release Date (so long as such Lien was not incurred in contemplation of the Acquisition), to the extent and in the manner such Liens are in effect on the Issue Date or the Escrow Release Date, as applicable;

(23)          Liens securing the Notes, the Secured Notes issued on the Issue Date, the Note Guarantees and the guarantees of the Secured Notes issued on the Issue Date;

(24)          Liens of Parent or the Company or a Wholly Owned Restricted Subsidiary of Parent or the Company on assets of any Restricted Subsidiary of Parent and Liens on assets of Parent or the Company in favor of a Wholly Owned Restricted Subsidiary that is a Guarantor;

(25)          Liens deemed to exist in connection with Investments in repurchase agreements;

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(26)          Liens of a collection bank arising under the UCC, or other applicable Law, on items in the course of collection;

(27)          reservations, limitations provisos and conditions expressed in any original grants from any Governmental Authority or other grants of real or immovable property, or interests therein, which do not materially affect the use of the affected land or detract from the value thereof;

(28)          the rights reserved to or vested in governmental authorities by statutory provisions or by the terms of leases, licenses, franchises, grants or permits, which affect any land, to terminate the leases, licenses, franchises, grants or permits or to require annual or other periodic payments as a condition of the continuance thereof;

(29)          Liens in favor of public utilities or to any municipalities or governmental authorities or other public authorities when required by such utilities, municipalities or governmental authorities or such other public authorities in connection with the supply of services or utilities to Parent or any of its Subsidiaries;

(30)          Liens (A) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Indenture to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any disposition permitted under this Indenture (including any letter of intent or purchase agreement with respect to such Investment or disposition) or (B) consisting of an agreement to dispose of any property in a disposition permitted under this Indenture, in each case, solely to the extent such Investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

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

(32)          in the case of Indebtedness permitted under this Indenture issued into escrow, Liens on the proceeds of such Indebtedness and any cash or Cash Equivalents consisting of prefunded accrued interest on, or additional funds or premium in respect of, such Indebtedness, and any investments with respect to such proceeds, in each case for so long as such funds remain in escrow;

(33)          Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness that has been secured by a Lien permitted under this Indenture and that has been incurred without violation of this Indenture; provided, however, that such Liens: (i) are no less favorable to the Holders and are not more favorable to the lienholders, in each case in any material respect, with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any categories of property or assets of the Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced.

(34)          Liens securing existing or future borrowings under Credit Facilities incurred pursuant to Section 4.09(b)(2) hereof;

(35)          Liens securing Indebtedness incurred pursuant to Section 4.09(b)(17) hereof;

(36)          Liens securing Indebtedness incurred pursuant to Section 4.09(b)(19) hereof;

(37)          Liens in favor of a consignor encumbering assets delivered to Parent or a Restricted Subsidiary on consignment in the ordinary course of business;

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(38)          deposits to secure the performance of bids, trade contracts, government contracts and leases (other than Indebtedness), 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;

(39)          Liens on the Capital Stock of Unrestricted Subsidiaries; and

(40)          any encumbrance or restriction existing under or by reason of contractual requirements in connection with a Receivables Facility.

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

“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.

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

“Purchase Agreement” means the Purchase Agreement dated March 1, 2023 by and among the Company, Parent and Goldman Sachs & Co. LLC, as representative of the several initial purchasers named therein.

“Purchase Money Indebtedness” means Indebtedness of Parent and its Restricted Subsidiaries incurred for the purpose of financing all or any part of the acquisition, or the cost of installation, construction, repair, replacement or improvement, of fixed or capital assets, property or equipment.

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

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

“Rating Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Notes for reasons outside of the control of the Company, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by Parent or the Company as a replacement agency for Moody’s or S&P, as the case may be.

“Receivables” means accounts receivable, royalty or other revenue streams, including contract rights, lockbox accounts, records with respect to such accounts receivable, royalty or other revenue streams and other rights to payment and other assets related thereto created by or arising from sales of goods, leases of goods or the rendition of services rendered no matter how evidenced whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise).

“Receivables Assets” means Receivables, the proceeds thereof and other revenue streams and other rights to payment customarily sold, transferred, contributed or pledged together with such Receivables.

“Receivables Facility” means a public or private transfer, sale, financing or pledge of Receivables Assets by which the Company or any Restricted Subsidiary directly or indirectly securitizes specified Receivables Assets or pledges such specified Receivables Assets in a secured financing.

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“Recovery Event” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Company or any Subsidiary.

“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness, in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings; provided that the principal amount of such Refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing.

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

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

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

“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee having direct responsibility for the administration of this Indenture and the Notes (or any successor group of the Trustee) and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Restricted Definitive Note” means a Definitive Note bearing, or that is required to bear, the Private Placement Legend.

“Restricted Global Note” means a Global Note bearing, or that is required to bear, the Private Placement Legend.

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

“Restricted Subsidiary” of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary. Unless otherwise expressly noted herein, the term “Restricted Subsidiary” of Parent includes the Company.

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

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

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

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

“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to Parent or a Restricted Subsidiary of any property, whether owned by Parent or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by Parent or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such property.

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“S&P” means Standard & Poor’s Global Ratings, or any successor to the rating agency business thereof.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the United States Securities Act of 1933, as amended.

“Secured Foreign Credit Facilities” means (a) the Chinese Facilities, (b) the Indian Facilities, (c) the Singapore Facilities and (d) any other lines of credit, credit agreements or similar facilities or extensions of credit made to one or more International Restricted Subsidiaries (other than Subsidiaries organized under the Laws where Parent, the Company and any then-existing Guarantor is organized) in an aggregate principal at any time outstanding not to exceed the greater of $250.0 million and 20% of Consolidated EBITDA for the Applicable Measurement Period.

“Secured Notes” means the $550.0 million aggregate principal amount of Senior Secured Notes due 2028 offered by the Company pursuant to the Offering Circular and issued pursuant to the Secured Notes Indenture.

“Secured Notes Indenture” means the indenture, dated as of March 15, 2023 (as supplemented or otherwise modified from time to time) by and among Parent, the Company, the guarantors party from time to time thereto and U.S. Bank Trust Company, National Association, as trustee and as notes collateral agent.

“Senior Secured Credit Facilities” means the Credit Agreement, dated as of October 27, 2016, by and among Parent, the subsidiary borrowers party thereto, the guarantors party thereto, Bank of America, N.A., as administrative agent, U.S. swing line lender and L/C issuer, Royal Bank of Canada, as Canadian swing line lender and L/C issuer, and the other lenders party thereto, together with the related documents thereto (including any guarantee agreements and security documents), in each case as amended to the date of the Offering Circular and as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of Parent as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders (whether or not such added or substituted parties are banks or other institutional lenders).

“Significant Subsidiary,” with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w) of Regulation S-X under the Securities Act.

“Singapore Facilities” means the line of credit and other extensions of credit to one or more Wholly Owned Subsidiaries of Parent that are incorporated under the Laws of Singapore, in an aggregate principal amount at any time outstanding not to exceed $10.0 million.

“Specified Property Sales” means the sale of certain real estate properties with an aggregate purchase price of $200.0 million.

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance with the terms of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

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“Subordinated Indebtedness” means Indebtedness of Parent, the Company or any other Guarantor that is contractually subordinated in right of payment to the Notes or the Note Guarantee of such Guarantor, as the case may be.

“Subsidiary” with respect to any Person, means:

(1)            any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or through another Subsidiary, by such Person; or

(2)            any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or through another Subsidiary, owned by such Person.

“Tax Act” means the Income Tax Act (Canada).

“Taxes” means any present or future tax, duty, levy, impost, assessment or other government charge (including penalties, interest and any other liabilities related thereto) imposed or levied by or on behalf of a Taxing Authority.

“Taxing Authority” means any government or any political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax.

“Transactions” means, collectively, (i) the Acquisition, (ii)  the offering of the Initial Notes and the offering of the Secured Notes, (iii) borrowings under the Senior Secured Credit Facilities, (iv) the redemption of the Existing Notes, (v) the issuance of common stock by Parent in connection with the Acquisition and (vi) all other transactions related to or incidental to, or in connection with, any of the foregoing (including the payment of fees and expenses in connection with each of the foregoing).

“Treasury Securities” means any investment in obligations issued or guaranteed by the United States government or any agency thereof, in each case, maturing no later than the Escrow End Date.

“Treasury Rate” means, with respect to a redemption date, the yield to maturity at the time of computation of United States Treasury Securities with a constant maturity (as compiled and published in the most recent Selected Interest Rates (Daily) – H.15 that has become publicly available at least two Business Days prior to such redemption date (or, if such Selected Interest Rates is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to March 15, 2026; provided, however, that if the period from such redemption date to March 15, 2026 is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from such redemption date to March 15, 2026 is less than one year, the weekly average yield on actually traded United States Treasury Securities adjusted to a constant maturity of one year shall be used.

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

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“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.

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

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

“Unrestricted Subsidiary” of any Person means:

(1)            any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and

(2)            any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of Parent or the Company may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, Parent, the Company or any other Subsidiary of Parent or the Company that is not a Subsidiary of the Subsidiary to be so designated; provided that:

(1)            the Company certifies to the Trustee that such designation complies with Section 4.07; and

(2)            each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Parent or any of its Restricted Subsidiaries.

The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if:

(1)            immediately after giving effect to such designation, the Company is able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a); and

(2)            immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.

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

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

“U.S. Restricted Subsidiary” means any Restricted Subsidiary that is organized under the Laws of any state of the United States or the District of Columbia.

“Wholly Owned Restricted Subsidiary” of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is a Restricted Subsidiary of such Person.

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“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a State in the United States or the District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable Law) are owned by such Person or any Wholly Owned Subsidiary of such Person.

Section 1.02        Other Definitions.

Term	Defined in Section
“Acceptable Commitment”	4.10
“Additional Amounts”	4.16
“Affiliate Transaction”	4.11
“Applicable Premium Deficit”	11.01
“Authentication Order”	2.02
“basket”	4.17
“Change of Control Offer”	4.15
“Change of Control Payment Date”	4.15
“Covenant Defeasance”	8.03
“deemed year”	12.15
“DTC”	2.03
“Elected Amount”	4.09
“Event of Default”	6.01
“Increased Amount”	4.12
“incur”	4.09
“Initial Lien”	4.12
“Legal Defeasance”	8.02
“Net Proceeds Offer”	4.10
“Net Proceeds Offer Payment Date”	4.10
“Paying Agent”	2.03
“Payor”	4.16
“Permitted Indebtedness”	4.09
“Reference Date”	4.07
“Registrar”	2.03
“Relevant Taxing Jurisdiction”	4.16
“Replacement Assets”	4.10
“Restricted Payment”	4.07
“Reversion Date”	4.20
“Second Commitment”	4.10
“Special Mandatory Redemption”	3.09
“Special Mandatory Redemption Date”	3.09
“Special Mandatory Redemption Event”	3.09
“Surviving Entity”	5.01
“Surviving Guarantor”	10.04
“Surviving Parent”	5.01
“Suspension Period”	4.20
“USA PATRIOT Act”	12.14

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Section 1.03         Rules of Construction.

Unless the context otherwise requires:

 (1)           a term has the meaning assigned to it;

 (2)           an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 (3)           “or” is not exclusive;

 (4)           the words “include,” “including” and other words of similar import mean “include, without limitation” or “including, without limitation,” regardless of whether any reference to “without limitation” or words of similar import is made; and the included items do not limit the scope of the more general terms; and the listed included items are covered whether or not they are within the scope of the more general terms;

 (5)           words in the singular include the plural, and in the plural include the singular;

 (6)           “will” shall be interpreted to express a command;

 (7)           provisions apply to successive events and transactions; and

 (8)           references to sections of or rules under the Securities Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

 (9)           all references to Sections or Articles refer to Sections or Articles of this Indenture;

 (10)         use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed to include, where appropriate, the other pronouns; and

 (11)         “$” refers to U.S. dollars.

Article 2
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 and shall include the Private Placement Legend unless it is removed as contemplated by Section 2.06 hereof. The Notes may have notations, legends or endorsements required by Law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 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 Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

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

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

(d)            Additional Notes. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited, subject to compliance with Sections 2.13 and 4.09 hereof.

Section 2.02           Execution and Authentication.

At least one Officer must sign the Notes for the Company by manual, facsimile signature or electronically imaged signature.

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

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

The Trustee will, upon receipt of a written order of the Company signed by at least one Officer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

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

The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 in aggregate principal amount and any integral multiples of $1,000 in excess thereof.

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Section 2.03           Registrar and Paying Agent.

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

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

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

Section 2.04           Paying Agent to Hold Money in Trust.

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

Section 2.05           Holder Lists.

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

Section 2.06           Transfer and Exchange.

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

(1)            the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary;

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(2)            the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or

(3)            there has occurred and is continuing a Default or Event of Default with respect to the Notes and DTC requests the issuance of Definitive Notes.

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names, and issued in any approved denominations, as requested by or on behalf of the Depositary to the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the events described in clauses (1), (2) or (3) above and pursuant to clause (c) below. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d) hereof.

The Company shall be responsible for making calculations called for under the Notes, including but not limited to determination of redemption price, premium, if any, and any additional amounts or other amounts payable on the Notes. The Company will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent verification.

(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 and to the extent required by the Securities Act and any other applicable securities Laws. 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 applicable Restricted Period, transfers of beneficial interests in a 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 an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

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(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) above, the transferor of such beneficial interest must deliver to the Registrar the applicable certificates prescribed by the succeeding sections and subparagraphs and 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 (1) above.

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

(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) above and the Registrar receives the following:

(A)          if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver 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 in a Regulation S Global Note, then the transferor must deliver a certificate 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 a IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

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(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) above and 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 a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) 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 a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (4), if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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 at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred or exchanged.

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

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

(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 the occurrence of any of the events described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof 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 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

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(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 to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F)           if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

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

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

(2)            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 upon the occurrence of any of the events described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof 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 an Unrestricted Definitive Note, a certificate from such holder 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 in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (2), if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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)            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 described in clause ‎(1), ‎(2) or ‎(3) of ‎Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) 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 deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.

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

(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 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in 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 to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

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

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(G)           if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in 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 appropriate Restricted Global Note pursuant to Section 2.06(g) hereof.

(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 an Unrestricted Global Note, a certificate from such Holder 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 an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

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

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

(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 an applicable Unrestricted Global Note.

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

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

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(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, then the transferor must deliver 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, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C)           if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel 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 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 in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (2), if the Company or the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Company or the Registrar, as applicable, 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.

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(f)            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 a legend in substantially the following form:

“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF 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 COMPLIANCE WITH REGULATION S, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATION S NOTES:

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. BY ITS ACQUISITION OF THIS SECURITY OR ANY INTEREST HEREIN, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES OR WILL CONSTITUTE THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” (WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR REGULATION 29 C.F.R. SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”

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

(2)            Global Note Legend. Each Global Note will bear a legend in substantially the following form (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 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

UNLESS 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 COMPANY 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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(3)            Canadian Legend. In addition to any other legend required by this Indenture, all Notes will bear the following legend:

“IN ACCORDANCE WITH NATIONAL INSTRUMENT 45-102 – RESALE OF SECURITIES, UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE NOTES MUST NOT TRADE THE NOTES IN CANADA BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (i) THE DATE OF THE DISTRIBUTION OF SUCH NOTES, AND (ii) THE DATE RITCHIE BROS. HOLDINGS INC. BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.”

(g)            Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. 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 will 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 will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(h)            General Provisions Relating to Transfers and Exchanges.

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

(2)            No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.10, 4.15 and 9.04 hereof).

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

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

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(5)            Neither the Registrar nor the Company will 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 day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

(B)           to register the transfer of or to exchange any Note (i) selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (ii) that have been tendered and not withdrawn in connection with a Change of Control Offer; or

(C)           to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

(6)            Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company shall deem and treat the Person in whose name any Note is registered by the Registrar as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

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

(8)            All orders, 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.

(9)            All Notes shall be maintained in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations and may be transferred only in accordance with such provisions.

None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable Law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Definitive Note or 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, to examine the same to determine substantial compliance as to form with the express requirements hereof and to examine the register to determine the owner of such Note.

None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner in a Global Note, a Participant or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, with respect to any ownership interest in a Global Note or with respect to the delivery to any Participant, beneficial owner or other Person (other than the Depositary or its nominee) of any notice (including any notice of redemption) or the payment of any amount (other than the Depositary or its nominee), under or with respect to such Global Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes and this Indenture shall be given or made only to or upon the order of the Holders (which shall be the Depositary or its nominee in the case of the Global Note). The rights of beneficial owners in the Global Note shall be exercised only through the Depositary subject to the Applicable Procedures. The Trustee and the Agents shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants and any beneficial owners. The Trustee and the Agents shall be entitled to deal with the Depositary, and any nominee thereof, that is the Holder of any Global Note for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest and Additional Amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole holder of such Global Note and shall have no obligations to the beneficial owners thereof. None of the Trustee or any Agent shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Note for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions between the Depositary and any Participant or between or among the Depositary, any such Participant and/or any holder or owner of a beneficial interest in such Global Note, or for any transfers of beneficial interests in any such Global Note.

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Section 2.07           Replacement Notes.

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge for its expenses in replacing a Note.

Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.08           Outstanding Notes.

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.

Section 2.09           Treasury Notes.

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.

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Section 2.10           Temporary Notes.

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.

Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

Section 2.11           Cancellation.

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of canceled Notes in accordance with its then customary procedures (subject to the record retention requirements of the Exchange Act). Certification of the disposition of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12           Defaulted Interest.

If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

Section 2.13           Issuance of Additional Notes.

The Company shall be entitled, upon delivery of an Officer’s Certificate, Opinion of Counsel and Authentication Order, to issue Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued on the Issue Date, other than with respect to the date of issuance and issue price and, if applicable, the initial interest accrual date and the initial interest payment date, subject to compliance with ‎Section 4.09 hereof. The Initial Notes and any Additional Notes issued will be treated as a single class for all purposes under this Indenture, provided that if the Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, the Additional Notes will have a separate CUSIP number.

With respect to any Additional Notes, the Company shall set forth in a resolution of its Board of Directors and an Officer’s Certificate, a copy of each which shall be delivered to the Trustee, the following information: (1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture, (2) the issue price, the date of issuance and the CUSIP number of such Additional Notes and (3) that the issuance of such Additional Notes does not contravene ‎Section 4.09 hereof.

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Article 3
REDEMPTION AND PREPAYMENT

Section 3.01           Notices to Trustee.

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 10 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:

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

(2)            the redemption date;

(3)            the principal amount of Notes to be redeemed; and

(4)            the redemption price, if known at the time such notice is given.

If the redemption price is not known at the time such notice is to be given, the redemption price shall be set forth in an Officer’s Certificate delivered to the Trustee no later than two Business Days prior to the redemption date.

Section 3.02           Selection of Notes to Be Redeemed or Purchased.

If less than all of the Notes are to be redeemed at any time, the Trustee will select such Notes for redemption (1) in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the Company, (2) if the Notes are not so listed or such exchange prescribes no method of selection, in compliance with the requirements of DTC, or (3) if the Notes are not so listed or such exchange prescribes no method of selection, and the Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis, by round lot, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided, however, that no Note of $2,000 in aggregate principal amount or less shall be redeemed in part.

Section 3.03           Notice of Redemption.

Except as set forth in Section 3.09, notice of redemption will be sent electronically or mailed by first-class mail at least 10 but not more than 60 days before the redemption date to each Holder at its registered address, except that redemption notices may be 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 8 or 11 hereof.

The notice will identify the Notes to be redeemed and will state:

(1)            the redemption date;

(2)            the redemption price, or manner of calculation thereof if not then known;

(3)            if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued (or transferred by book-entry) upon cancellation of the original Note;

(4)            the name and address of the Paying Agent;

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

(6)            that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

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

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

At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption date (unless a shorter time is agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

Notice of any redemption of the Notes in connection with a corporate transaction (including an Equity Offering, an incurrence of Indebtedness, an amalgamation, consolidation or merger or a Change of Control) may, at the Company’s discretion, be given prior to the completion thereof and any such redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related transaction. 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 Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived by the Company (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 redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.

Section 3.04           Effect of Notice of Redemption.

Once notice of redemption is mailed or sent in accordance with Section 3.03 hereof, except as may be provided in Section 3.03 if any such redemption is subject to any condition precedent, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price.

Section 3.05           Deposit of Redemption or Purchase Price.

Not later than 10:00 a.m. (New York City time) on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or purchased.

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest 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 and on or before the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name the Note is registered at the close of business on such record date, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Company. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company 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 4.01 hereof.

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Section 3.06           Notes Redeemed or Purchased in Part.

Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder (or transfer by book-entry) at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

Section 3.07           Optional Redemption.

(a)            At any time prior to March 15, 2026, the Notes will be redeemable, at the Company’s option, in whole or in part from time to time, upon not less than 10 nor more than 60 days’ written notice, at a price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date).

(b)            In addition, the Company may redeem the Notes at its option, in whole or in part, upon not less than 10 nor more than 60 days’ written notice, at the following redemption prices (expressed as percentages of the principal amount thereof) plus accrued and unpaid interest, if any, to, but excluding, the redemption date if redeemed during the 12-month period commencing on March 15 of the year set forth below:

Year	Percentage
2026		103.8750	%
2027		101.9375	%
2028 and thereafter		100.000	%

In addition, the Company must pay accrued and unpaid interest on the Notes redeemed to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date).

(c)            At any time, or from time to time, on or prior to March 15, 2026, the Company may, at its option, use an amount of cash up to the Net Cash Proceeds of one or more Equity Offerings to redeem, upon not less than 10 nor more than 60 days’ written notice up to 40% of the principal amount of the Notes (including any Additional Notes) outstanding under this Indenture at a redemption price of 107.750% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date); provided that:

(1)            at least 50% of the principal amount of Notes (including any Additional Notes) outstanding under this Indenture remains outstanding immediately after any such redemption; and

(2)            the Company makes such redemption not more than 90 days after the consummation of any such Equity Offering.

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(d)            If, as a result of:

(1)            any amendment to, or change in, the Laws or treaties (or regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction which is announced or becomes effective on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date); or

(2)            any amendment to, or change in, the existing official written position or the introduction of a written official position regarding the application, interpretation, administration or assessing practices of any such Laws, regulations or rulings of any Relevant Taxing Jurisdiction, or a judicial decision rendered by a court of competent jurisdiction (whether or not made, taken or reached with respect to Parent, the Company or any of the other Guarantors) which is announced on or after, and becomes effective on or after (for the avoidance of doubt, including retroactive implementation with an effective date prior to), the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date),

any Payor has become or will become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or a Note Guarantee, as applicable, Additional Amounts or indemnification payments as described under Section 4.16 with respect to the Relevant Taxing Jurisdiction, which payment the Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) cannot avoid with the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), then the Company may, at its option, redeem all but not less than all of the Notes, upon not more than 60 days’ notice prior to the earliest date on which a Payor would be required to pay such Additional Amounts or indemnification payments, at a redemption price of 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date). The Company will not give any such notice of redemption unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect. Prior to the giving of any notice of redemption described in this Section 3.07(d), the Company will deliver to the Trustee a written opinion of independent legal counsel to the Payor of recognized standing and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld, conditioned or delayed), to the effect that the Payor has or will become obligated to pay such Additional Amounts or indemnification payments as a result of an amendment or change described in this Section 3.07(d).

In addition, prior to the giving of any such notice of redemption, the Company will deliver to the Trustee an Officer’s Certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by the applicable Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) taking reasonable measures available to it; provided that changing the jurisdiction of incorporation or formation of the applicable Payor shall not be considered a reasonable measure.

The Trustee will accept and may rely conclusively on such Officer’s Certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.

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

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(f)             Notwithstanding the foregoing, in connection with any Change of Control Offer or Net Proceeds Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such Change of Control Offer or Net Proceeds Offer and the Company, or any third party making a such Change of Control Offer or Net Proceeds Offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, all of the Holders will be deemed to have consented to such Change of Control Offer or Net Proceeds Offer and accordingly, the Company or such third party will then have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such Change of Control Offer or Net Proceeds Offer plus, to the extent not included, accrued and unpaid interest, if any, thereon, to, but excluding, such redemption date.

Section 3.08           Mandatory Redemption.

Except as described under Section 3.09, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09           Special Mandatory Redemption.

If (i) the Escrow Agent has not received the Officer’s Certificate pursuant to the Escrow Agreement providing for the Escrow Release prior to the Escrow End Date and the Escrow Agent does not receive such Officer’s Certificate on the Escrow End Date or (ii) the Company notifies the Escrow Agent and the Trustee, in writing, that the Company will not pursue the consummation of the Acquisition or that the Merger Agreement has been terminated in accordance with its terms (each of the above, a “Special Mandatory Redemption Event”), then the Escrow Agent shall, without the requirement of notice to or action by the Company, the Trustee or any other person, liquidate and release the Escrowed Property (including investment earnings thereon and proceeds thereof) to the Trustee. The Company shall send or cause to be sent a notice of redemption to the Holders of the Notes and the Trustee shall apply (or cause a paying agent to apply) such proceeds to redeem the Notes (the “Special Mandatory Redemption”) on the third Business Day following the Special Mandatory Redemption Event (the “Special Mandatory Redemption Date”) or as otherwise required by the applicable procedures of DTC, at a redemption price equal to 100% of the issue price of the Notes, plus accrued and unpaid interest from the Issue Date, or the most recent date to which interest has been paid, as the case may be, to, but excluding the Special Mandatory Redemption Date (subject to the right of Holders on the applicable record date to receive interest due on the applicable interest payment date). On the Special Mandatory Redemption Date, after deduction of its and the Escrow Agent’s fees and expenses, if any, the Trustee will pay to the Company any Escrowed Property in excess of the amount necessary to affect the Special Mandatory Redemption.

Article 4
COVENANTS

Section 4.01           Payment of Notes.

The Company will pay or cause to be paid the principal of, premium on, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

The Company will pay interest (including post-petition interest in any proceeding or case under any Bankruptcy Law) on overdue principal at the interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding or case under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.

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Section 4.02         Maintenance of Office or Agency.

The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

The Company may also from time to time designate 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 such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.

Section 4.03         Reports to Holders.

(a)          Notwithstanding that Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, Parent will furnish to the Trustee, within 15 days after the time periods specified below:

  (1)           within 90 days after the end of each fiscal year, all financial information (including audited financial statements) of Parent that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the annual financial statements by Parent’s independent registered public accounting firm;

  (2)           within 45 days after the end of each of the first three fiscal quarters of each fiscal year, all financial information of Parent that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC; and

  (3)           promptly after the occurrence of any of the following events (but in no event later than an registrant would be required to report such event on a Form 8-K), all current reports to the extent relating to such event that would be required to be filed with the SEC on Form 8-K or any successor or comparable form (if Parent had been a reporting company under Section 15(d) of the Exchange Act):

  (a)           the entry into or termination of material agreements;

  (b)          significant acquisitions or dispositions;

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  (c)           the sale of equity securities;

  (d)          bankruptcy;

  (e)           cross-default under direct material financial obligations;

  (f)           a change in Parent’s certifying independent auditor;

  (g)          the appointment or departure of directors or executive officers;

  (h)          non-reliance on previously issued financial statements; and

  (i)           change of control transactions,

in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Circular; provided, that the foregoing shall not obligate Parent to (i) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if Parent determines in its good faith judgment that such event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of Parent and its Restricted Subsidiaries taken as a whole or (ii) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to such report.

(b)          Notwithstanding Section 4.03(a), Parent shall not be required to (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained in any report required by clauses (1), (2) and (3) of Section 4.03(a), (ii) provide any information that is not otherwise similar to information currently included in the Offering Circular or (iii) provide the type of information contemplated by Rule 3-16 of Regulation S-X with respect to financial statements of affiliates whose securities collateralize certain securities or Rule 3-10 of Regulation S-X with respect to separate financial statements for Guarantors or any financial statements for unconsolidated subsidiaries or 50% or less owned persons contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each cash any successor provisions; provided that, Parent shall provide the revenues, “EBITDA”, “Adjusted EBITDA”, assets and liabilities of (i) Parent, the Company and the other Guarantors, collectively and (ii) the non-Guarantors, collectively, separately in a manner consistent with the presentation thereof in the Offering Circular, to the extent required in such form. In addition, notwithstanding Section 4.03(a) or the foregoing, Parent will not be required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified in Section 4.03(a) and such information is subsequently filed or furnished, as applicable, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.

(c)          At any time that any of Parent’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary, then the annual and quarterly financial information required by the Section 4.03(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.

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(d)          Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to this Section 4.03, Parent shall also post copies of such information required by this Section 4.03 on a website (which may be nonpublic and may be maintained by Parent or a third party) to which access will be given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or Non-U.S. Persons that certify their status as such to the reasonable satisfaction of Parent), and securities analysts and market making financial institutions that are reasonably satisfactory to Parent.

(e)          The Trustee shall have no obligation to determine if and when Parent’s financial statements or reports are publicity available and accessible electronically. Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including Parent’s compliance with any of its covenants hereunder (as to which the Trustee may rely exclusively on Officer’s Certificates).

(f)           Parent will hold quarterly conference calls for the Holders to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with Parent’s equity investors and analysts). Such conference calls will be following the last day of each fiscal quarter of Parent and not later than 15 Business Days from the time that Parent distributes the financial information as set forth in Section 4.03(a). No fewer than two days prior to the conference call, Parent will issue a press release announcing the time and date of such conference call and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(d).

(g)          To the extent not satisfied by this Section 4.03, Parent shall, for so long as any Notes are outstanding, furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(h)          Notwithstanding anything to the contrary set forth in this Section 4.03, if Parent has furnished or filed the reports described in this Section 4.03 with respect to Parent with the SEC via EDGAR (or any successor reporting system of the SEC), Parent shall be deemed to be in compliance with the provisions of this Section 4.03; provided that the Trustee shall not have any responsibility to determine if any documents have been so filed.

(i)           To the extent that, after taking into account applicable no-action and other interpretative releases, applicable U.S. securities Laws or regulations (including Exchange Act Rule 15c2-11) require the disclosure, provision, availability or filing of information in order for broker-dealers to publish or submit quotations for the Notes, Parent or the Company will disclose, provide, make available or file such information.

Section 4.04         Compliance Certificate.

(a)          The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year ended after the Issue Date, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has complied with this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has complied with this Indenture and no Default or Event of Default has occurred during such period (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).

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(b)          So long as any of the Notes are outstanding, the Company will deliver to the Trustee, within 15 Business Days after an Officer becomes aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

Section 4.05         Taxes.

The Company will pay, and will cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

Section 4.06         Stay, Extension and Usury Laws.

The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury Law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such Law, and covenants that it will not, by resort to any such Law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such Law has been enacted.

Section 4.07         Restricted Payments.

(a)          Parent shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly:

  (1)          declare or pay any dividend or make any distribution (other than (A) dividends or distributions payable in Qualified Capital Stock of Parent or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, Parent or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Capital Stock in such class or series of securities) on or in respect of shares of Parent’s Capital Stock to holders of such Capital Stock;

  (2)           purchase, redeem or otherwise acquire or retire for value any Capital Stock of Parent or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock (other than Disqualified Capital Stock within 365 days of the Stated Maturity thereof);

  (3)           make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, earlier than one year prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than Subordinated Indebtedness held by Parent or any of its Restricted Subsidiaries); or

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  (4)           make any Investment (other than Permitted Investments) (each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a “Restricted Payment”), if at the time of such Restricted Payment or immediately after giving effect thereto,

  (i)            a Default or an Event of Default shall have occurred and be continuing;

  (ii)           Parent is not able to incur at least $1.00 of additional Indebtedness in compliance with Section 4.09(a); or

  (iii)          the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the first day of the fiscal quarter of Parent during which the Issue Date occurs (the amount expended for such purposes, if other than in cash, being the fair market value of such property as determined in good faith by the Board of Directors of Parent or the Company) shall exceed the sum, without duplication, of:

 (w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of Parent earned subsequent to the first day of the fiscal quarter of the Company during which the Issue Date occurs and on or prior to the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus

 (x) 100% of the aggregate net cash proceeds and the fair market value of readily marketable securities or other property received by Parent from any Person (other than a Subsidiary of Parent) from (i) the issuance and sale subsequent to the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of Parent or (ii) from the issue and sale subsequent to the Issue Date and on or prior to the Reference Date of Disqualified Capital Stock or convertible or exchangeable debt securities of Parent, in the case of this clause (ii), that has been converted into or exchange for Qualified Capital Stock; plus

 (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds and fair market value of readily marketable securities or other property, of any equity contribution received by Parent subsequent to the Issue Date (excluding, in the case of clauses (iii)(x) and (y), any such net cash proceeds to the extent used to (I) redeem the Notes in compliance with Section 3.07(c) or (II) to make a Restricted Payment pursuant to clauses (2) or (3) of the immediately succeeding paragraph); plus

 (z) the sum of:

(1) the aggregate amount in cash and fair market value of other property returned on or with respect to Investments (other than Permitted Investments) made subsequent to the Issue Date whether through interest payments, principal payments, dividends, by merger, consolidation amalgamation or other distribution, payment or transfer;

(2) the net cash proceeds received by Parent or any of its Restricted Subsidiaries subsequent to the Issue Date from the disposition of all or any portion of such Investments (other than to Parent or a Subsidiary of Parent); and

(3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (except to the extent the Investment constituted a Permitted Investment), the fair market value of such Subsidiary;

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provided, however, that the sum of subclauses (z)(1), (z)(2) and (z)(3) above shall not exceed the aggregate amount of all such Investments made subsequent to the Issue Date; and provided, further, that the issuance of Capital Stock of Parent to provide consideration for the Acquisition will not increase the capacity for Restricted Payments as set forth in this clause (iii); plus (aa) $650.0 million.

(b)         Notwithstanding the foregoing, the provisions set forth in Section 4.07(a) do not prohibit:

  (1)           the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or distribution or giving of the redemption notice, as the case may be, if the dividend, distribution or redemption payment would have been permitted on the date of declaration or giving of the redemption notice;

  (2)           if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of Parent, either (i) solely in exchange for shares of Qualified Capital Stock of Parent or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Parent) of shares of Qualified Capital Stock of Parent;

  (3)           if no Default or Event of Default shall have occurred and be continuing, the acquisition of any Indebtedness of the Company, Parent or a Guarantor that is subordinate or junior in right of payment to the Notes or such Guarantor’s Note Guarantee, as the case may be, or the acquisition of Disqualified Capital Stock, in each case, either (i) solely in exchange for shares of Qualified Capital Stock of Parent, or (ii) in exchange for, or by conversion into, or through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Parent), of (a) shares of Qualified Capital Stock of Parent or (b) Refinancing Indebtedness;

  (4)           if no Default or Event of Default shall have occurred and be continuing, repurchases, redemptions or other acquisitions by Parent of Common Stock of Parent (or options or warrants to purchase such Common Stock) from directors, officers, employees and consultants of Parent or any of its Subsidiaries or their authorized representatives upon the death, disability, retirement or termination of employment of such directors, officers, employees or consultants, in an aggregate amount not to exceed the sum of (x) $5.0 million and (y) the amount of Restricted Payments permitted but not made pursuant to this clause (4) in prior fiscal years; provided that no more than $5.0 million may be carried forward to any succeeding fiscal year; provided, further, however, that such amount in any calendar year may be increased by an amount not to exceed:

 (a)              the cash proceeds received by Parent or any of its Restricted Subsidiaries from the sale of Qualified Capital Stock of Parent to directors, officers, employees or consultants of Parent or its Restricted Subsidiaries subsequent to the Issue Date (provided that the amount of cash proceeds utilized for any such repurchase, redemption or other acquisition or dividend will not increase the amount available for Restricted Payments under clause (4)(iii) of Section 4.07(a)); plus

 (b)             the cash proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries after the Issue Date;

provided that cancellation of Indebtedness owing to Parent or any of its Restricted Subsidiary from any present or former directors, officers, employees or consultants of Parent or any of its Restricted Subsidiaries in connection with a repurchase of Capital Stock of Parent will not be deemed to constitute a Restricted Payment for purposes of this Section 4.07 or any other provision of this Indenture;

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  (5)           if no Event of Default shall have occurred and be continuing, other Restricted Payments in an amount not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period in any fiscal year; provided that any unused portion of the preceding basket for any fiscal year (commencing with the fiscal year in which the Issue Date occurred) may be carried forward to the succeeding fiscal years;

  (6)           additional Restricted Payments; provided, however, that (i) after giving pro forma effect to any such Restricted Payment, the Consolidated Debt Ratio shall be less than or equal to 3.00 to 1.00 and (ii) no Event of Default shall have occurred and be continuing;

  (7)           in the event of a Change of Control, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness of the Company, Parent or any other Guarantor, in each case at a purchase price not greater than 101% of the principal amount of such Subordinated Indebtedness, plus accrued and unpaid interest thereon; provided, however, that prior to, or concurrently with, such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer;

  (8)           in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to Section 4.10, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness of the Company, Parent or any other Guarantor, in each case at a purchase price not greater than 100% of the principal amount of such Subordinated Indebtedness, plus accrued and unpaid interest thereon; provided, however, that (A) prior to, or concurrently with, such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an offer with respect to the Notes pursuant to Section 4.10 and has repurchased all Notes validly tendered and not withdrawn in connection with such offer and (B) the aggregate amount of all such payments, purchases, redemptions, defeasances or other acquisitions or retirements of all such Subordinated Indebtedness may not exceed the amount of the Net Cash Proceeds Amount remaining after the Company has complied with Section 4.10(a)(3);

  (9)           (a) repurchases of Common Stock deemed to occur upon the exercise of stock options, warrants, rights or other Equity Interests if the Common Stock represents a portion of the exercise price thereof or withholding taxes payable in connection with the exercise thereof and (b) Restricted Payments by Parent or any Restricted Subsidiary of Parent to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of stock options, warrants, rights or other Equity Interests or upon the conversion or exchange of Capital Stock of such Person;

  (10)         the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to Parent or a Restricted Subsidiary of Parent by, Unrestricted Subsidiaries;

  (11)         (a) any Restricted Payment used to consummate the Transactions and to fund the payment of fees and expenses incurred in connection with the Transactions or owed by Parent or any Restricted Subsidiary of Parent, and any other payments made, including any such payments made to any direct or indirect parent of the Company to enable it to make payments in connection with the consummation of the Transactions, prior to or on or about the Escrow Release Date, in each case to the extent not materially inconsistent with the description of the Acquisition in the Offering Circular and (b) any Restricted Payment made under the Merger Agreement or otherwise in connection with the Transactions;

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  (12)         the payment of any dividend or distribution by a Restricted Subsidiary that is a member of a consolidated, combined, or similar group (for this purpose, including a Restricted Subsidiary that is an entity disregarded from any such member for relevant tax purposes), in an amount necessary for the parent of the group filing consolidated, combined, or similar returns with such Restricted Subsidiary to pay taxes with respect to the net income of such Restricted Subsidiary or its Subsidiaries; provided that the amount of such payments in respect of any tax year shall not exceed the amount that such Subsidiaries would have been required to pay in respect of such taxes if such Subsidiaries paid such taxes directly on a separate company basis or as a standalone consolidated, combined, affiliated or unitary tax group; provided, further, that to the extent such dividend or distribution relates to the net income of an Unrestricted Subsidiary, only to the extent cash is received from such Unrestricted Subsidiary for purposes of such dividend or distribution; and

  (13)         the declaration and payment of any dividends on, any redemptions or repurchases of, and any payments of cash in lieu of shares upon conversion of, Parent’s Series A preferred stock outstanding as of the Issue Date.

In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with Section 4.07(a)(iii), amounts expended pursuant to Section 4.07(b)(1) shall be included in such calculation.

For purposes of determining compliance with this Section 4.07, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in Section 4.07(b)(1) through (13) above or the criteria of a Permitted Investment, or is entitled to be incurred pursuant to Section 4.07(a), Parent and the Company will be entitled to divide, classify or reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment or portion thereof in any manner that complies with this Section 4.07 and such Restricted Payment will be treated as having been made pursuant to only such clause or clauses, as a Permitted Investment or Section 4.07(a).

Section 4.08         Dividend and Other Payment Restrictions Affecting Guarantors.

(a)          Each of the Company and Parent will not, and will not cause or permit any other Guarantor to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any other Guarantor to:

(1)         pay dividends or make any other distributions on or in respect of its Capital Stock to the Company, Parent or any other Guarantor;

(2)         make loans or advances or to pay any Indebtedness or other obligation owed to the Company, Parent or any other Guarantor; or

(3)         transfer any of its property or assets to the Company, Parent or any other Guarantor.

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(b)          The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

  (1)           applicable Law, rule, regulation, decree or order;

  (2)           the Notes and the related Note Guarantees, this Indenture and the Escrow Agreement;

  (3)           customary subletting and non-assignment provisions of any contract or any lease governing a leasehold interest of Parent, the Company or any other Guarantor;

  (4)           any agreement or instrument (including those governing Indebtedness (including Acquired Indebtedness) or Capital Stock) of a Person acquired by Parent, the Company or any other Guarantor as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the properties or assets of the Person, or the Equity Interests of the Person, so acquired;

  (5)           contractual encumbrances or restrictions (i) in effect on the Issue Date or (ii) solely with respect to IAA and its subsidiaries, in effect on the Escrow Release Date so long as such encumbrances or restrictions were not entered into in contemplation of the Acquisition;

  (6)           the Senior Secured Credit Facilities, the Secured Notes Indenture and any related documentation or an agreement governing other Indebtedness permitted to be incurred under this Indenture; provided that, with respect to any agreement governing such other Indebtedness, the provisions relating to such encumbrance or restriction, taken as a whole, are no less favorable to Parent or the Company in any material respect as determined by the Board of Directors of Parent or the Company, as applicable, in its reasonable and good faith judgment than the provisions contained in the Senior Secured Credit Facilities, the Secured Notes Indenture or this Indenture as in effect on the Issue Date;

  (7)           restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;

  (8)           restrictions and conditions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;

  (9)           restrictions imposed by agreements governing obligations of International Restricted Subsidiaries that are Guarantors which are permitted under this Indenture;

  (10)         restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

  (11)         customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;

  (12)         customary restrictions under agreements relating to Cash Pooling Arrangements;

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  (13)         customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted under this Indenture;

  (14)         customary restrictions arising in connection with cash or other deposits in connection with Liens permitted under this Indenture;

  (15)         any document or instruments governing Indebtedness permitted pursuant to clause (13) of the definition of “Permitted Indebtedness”;

  (16)         customary provisions restricting assignment of any agreement entered into in the ordinary course of business;

  (17)         restrictions imposed by any agreement governing Indebtedness not restricted by covenant described under Section 4.09 so long as the Company shall have determined in good faith that such restrictions will not affect its obligation or ability to make any payments required under this Indenture or the Notes or otherwise perform its obligations hereunder or thereunder; and

  (18)         any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or refinancings of those agreements, instruments or obligations referred to in clauses (1) through (14) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such agreements, taken as a whole, are no less favorable to Parent or the Company in any material respect as determined by the Board of Directors of Parent or the Company, as applicable, in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (1) through (14) above.

Nothing contained in this Section 4.08 shall prevent Parent, the Company or any other Guarantor from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by Section 4.12 or (2) restricting the sale or other disposition of property or assets of Parent, the Company or any other Guarantor that secure Indebtedness of Parent, the Company or any other Guarantor.

For purposes of determining compliance with this Section 4.08, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to Parent, the Company or any other Guarantor to other Indebtedness incurred by Parent, the Company or any other Guarantor shall not be deemed a restriction on the ability to make loans or advances.

Section 4.09         Incurrence of Additional Indebtedness.

(a)          Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including Acquired Indebtedness); provided, however, that Parent and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if on the date of the incurrence of such Indebtedness, after giving pro forma effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0; provided, further, that any Restricted Subsidiary of Parent that is not or will not, upon such incurrence, become a Guarantor may not incur Indebtedness under this paragraph if, after giving pro forma effect to such incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate principal amount equal to the greater of (A) $110.0 million and (B) 10% of Consolidated EBITDA for the Applicable Measurement Period of Indebtedness of such non-Guarantor Subsidiary would be outstanding under this paragraph at such time.

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(b)         The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Indebtedness”):

  (1)           Indebtedness under the Notes issued on the Issue Date (including the related Note Guarantees);

  (2)           (a) Indebtedness incurred pursuant to Credit Facilities in an aggregate principal amount at any time outstanding not to exceed the sum of $3,415 million and (b) an additional aggregate principal amount of Consolidated Total Secured Indebtedness in an amount such that, on a pro forma basis after giving effect to the incurrence of such Indebtedness (and application of the net proceeds therefrom), the Consolidated Secured Debt Ratio would be no greater than 3.50 to 1.00;

  (3)           (x) Indebtedness represented by the Secured Notes, including any guarantee thereof, and (y) Indebtedness of Parent and its Restricted Subsidiaries outstanding on the Issue Date (other than Indebtedness under clause (1) and (2) of this Section 4.09(b)) (including any amendments or replacements thereof that do not increase the principal amount);

  (4)           Interest Swap Obligations of Parent or any of its Restricted Subsidiaries covering Indebtedness of Parent or such Restricted Subsidiary; provided, however, that (a) such Interest Swap Obligations are entered into for the purpose of mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by Parent or such Restricted Subsidiary, or changes in the value of securities issued by Parent or such Restricted Subsidiary, and not for purposes of speculation or taking a “market view”;

  (5)           Indebtedness under Currency Agreements; provided that in the case of Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase the Indebtedness of Parent and its Restricted Subsidiaries outstanding other than as a result of fluctuations in currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

  (6)           Indebtedness of Parent owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary of Parent owing to and held by Parent or any other Restricted Subsidiary of Parent; provided, however, that: (a) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than Parent or a Restricted Subsidiary of Parent, and (b) any sale or other transfer (excluding Permitted Liens) of any such Indebtedness to a Person other than Parent or a Restricted Subsidiary of Parent, shall be deemed, in each case, to be the incurrence of Indebtedness by Parent or such Restricted Subsidiary, as the case may be, not permitted by this clause (6);

  (7)           (a) obligations pursuant to any Cash Management Agreement and other Indebtedness in respect of netting services, overdraft protections and similar arrangements, (b) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business and (c) Cash Pooling Arrangements (including for the avoidance of doubt any Indebtedness arising vis a vis the Cash Pooling Arrangements providers and/or between any of Parent and/or Subsidiaries of Parent as a whole by reason of the implementation of such Cash Pooling Arrangements);

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  (8)           Indebtedness of Parent or any of its Restricted Subsidiaries (a) represented by letters of credit, pledges or deposits for the account of Parent or such Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance, the purchase of goods or other requirements in the ordinary course of business or (b) owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;

  (9)           Indebtedness represented by guarantees by Parent or its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture; provided that, in the case of a guarantee by a Restricted Subsidiary, such Restricted Subsidiary complies with Section 4.18 to the extent applicable;

  (10)         Indebtedness of Parent or any of its Restricted Subsidiaries in respect of bid, payment and performance bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal bonds, payment obligations in connection with insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business;

  (11)         Indebtedness of Parent or any Restricted Subsidiary consisting of guarantees, earn-outs, incentives, non-competes, consulting, indemnities or other similar arrangements or obligations (contingent or other) in respect of purchase price adjustments in connection with the acquisition (including the Acquisition and related transactions) or disposition of assets;

  (12)         Indebtedness of (x) Parent or any Restricted Subsidiary incurred or issued to finance an acquisition or (y) Persons that are acquired by Parent or any Restricted Subsidiary or merged into or amalgamated or consolidated with Parent or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger, amalgamation or consolidation, either: (a) Parent would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant; (b) the Consolidated Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries would not be lower than immediately prior to such acquisition, merger, amalgamation or consolidation; or (c) such Indebtedness constitutes Acquired Indebtedness; provided that, with respect to this clause (c), the only obligors with respect to such Acquired Indebtedness shall be those Persons who were obligors of such Acquired Indebtedness prior to such acquisition, merger, amalgamation or consolidation; provided, further, that any Restricted Subsidiary of Parent (other than the Company) that is not or will not, upon such incurrence, become a Guarantor may not incur Indebtedness under clause (x) of this clause (12) if, after giving pro forma effect to such incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate principal amount equal to $150.0 million of Indebtedness of such non-Guarantor Subsidiary would be outstanding under clause (x) of this clause (12) at such time;

  (13)         Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness of Parent and its Restricted Subsidiaries in an aggregate principal amount at any time outstanding, including any Refinancing Indebtedness in respect thereof, not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period;

  (14)         Indebtedness of International Restricted Subsidiaries (other than Canadian Restricted Subsidiaries) of Parent in connection with letters of credit and bank guarantees in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $150.0 million and (B) 15% of Consolidated EBITDA for the Applicable Measurement Period;

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  (15)         Indebtedness of Parent evidenced by commercial paper issued by Parent; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to clause (2) of this Section 4.09(b) and this clause (15) does not exceed the maximum amount of Indebtedness permitted under clause (2) of this Section 4.09(b);

  (16)         Refinancing Indebtedness in respect of Indebtedness described in clauses (1), (2), (3), (4), (5), (12), (14) and (18) of this Section 4.09(b) and this clause (16);

  (17)         Indebtedness represented by Secured Foreign Credit Facilities;

  (18)         additional unsecured Indebtedness in the form of one or more revolving credit facilities with one or more commercial banks in an aggregate principal amount at any time outstanding not to exceed $200.0 million;

  (19)         additional Indebtedness of Parent and the Restricted Subsidiaries in an aggregate principal amount at any time outstanding, including any Refinancing Indebtedness in respect thereof, not to exceed the greater of (A) $550.0 million and (B) 50% of Consolidated EBITDA for the Applicable Measurement Period; and

  (20)         Indebtedness incurred pursuant to a Receivables Facility.

For purposes of determining compliance with this Section 4.09: (a) in determining any particular amount of Indebtedness under this Section 4.09, guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included; (b) in the event that all or a portion of an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (20) of Section 4.09(b) or is permitted to be incurred pursuant to Section 4.09(a), the Company shall, in its sole discretion, divide, classify and reclassify such item or portion of such item of Indebtedness in any manner that complies with this Section 4.09, including under Section 4.09(a) if such reclassified Indebtedness could then be incurred under such test, except that Indebtedness outstanding under the Senior Secured Credit Facilities on the Issue Date or the Escrow Release Date shall be deemed to have been incurred on the Issue Date or the Escrow Release Date under Section 4.09(b)(2) and may not be reclassified; (c) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of this Section 4.09; (d) in connection with Parent, the Company or a Restricted Subsidiary of Parent’s entry into an instrument containing a binding commitment in respect of any revolving Indebtedness, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Indebtedness which is to be incurred (or any commitment in respect thereof) or secured by a Lien, as the case may be, as being incurred as of such election date, and (i) any subsequent incurrence of Indebtedness under such commitment (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Indebtedness or an additional Lien at such subsequent time, (ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of all subsequent calculations of the Consolidated Debt Ratio and the Consolidated Secured Debt Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding; and (e) the principal amount of Indebtedness outstanding under any clause of this covenant shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness.

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If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of Parent as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this Section 4.09, the Company shall be in default of this Section 4.09).

For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt, and the amount of such debt will not be deemed to change as a result of fluctuations in currency exchange rates after such date of incurrence or commitment; provided, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing.

Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that Parent or a Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

(c)         The Company and Parent will not, and will not permit any other Guarantor to, directly or indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness) is expressly subordinated in right of payment to any other Indebtedness of the Company, Parent or such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Notes or the applicable Note Guarantee, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company, Parent or such Guarantor, as the case may be. For purposes of the foregoing and all other purposes under this Indenture, no Indebtedness will be deemed to be subordinated or junior in right of payment to any other Indebtedness of the Company, Parent or any other Guarantor solely by virtue of such Indebtedness being unsecured or by virtue of the fact that the holders of such Indebtedness have entered into one or more intercreditor agreements or similar arrangements giving one or more of such holders priority over the other holders in the collateral securing such Indebtedness.

Section 4.10         Asset Sales.

(a)         Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

  (1)           Parent or the applicable Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at or prior to the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s or Parent’s Board of Directors);

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  (2)           at least 75% of the consideration received by Parent or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at or prior to the time of such disposition. For purposes of this clause (2), each of the following shall be deemed to be cash:

  (A)           (i) any liabilities, as shown on the most recent consolidated balance sheet (or in the notes thereto) of Parent or any Restricted Subsidiary (or would be shown on such consolidated balance sheet (or in the notes thereto) as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee or (ii) any Guarantees of Indebtedness of Persons other than Parent or any Restricted Subsidiary, in each case, that are assumed by the person acquiring such assets to the extent that Parent and its Restricted Subsidiaries have no further liability with respect to such liabilities;

  (B)            any securities, notes or other obligations received by Parent or any such Restricted Subsidiary from such transferee that are converted by Parent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days after receipt; and

  (C)            any Designated Non-Cash Consideration received by Parent or its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, in the aggregate, not to exceed the greater of $25.0 million and 1.0% of Consolidated Total Assets at the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value;

  (3)           upon the consummation of an Asset Sale, Parent shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 540 days of receipt thereof either:

 (A)           to (x) repay Indebtedness of Parent and its Restricted Subsidiaries under any Credit Facility and in the case of any such Indebtedness under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however, that, if there shall not be any term loan indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to effect a permanent reduction in the availability under such revolving credit facility) or (y) repay or reduce Indebtedness of a Restricted Subsidiary of Parent that does not guarantee the Notes;

  (B)            to make an investment in, including in properties or assets that replace the properties and assets that were the subject of such Asset Sale or in properties or assets (including Capital Stock) that will be used or are useful, in the good faith judgment of the Board of Directors of the Company or Parent, in, the business of Parent and its Restricted Subsidiaries as they are engaged in on the Issue Date or the Escrow Release Date or in businesses reasonably related, incidental, synergistic, ancillary or complementary thereto (“Replacement Assets”); provided that, in the case of this clause (B), a binding commitment within 540 days of the date of the receipt of such Net Cash Proceeds shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so long as Parent or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, Parent or such other Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Net Proceeds Offer Amount if not otherwise applied as provided above within 540 days of the receipt of such Net Cash Proceeds; or

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 (C)             a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).

(b)         Pending the final application of any such Net Cash Proceeds, Parent or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(a), if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) of Section 4.10(a) within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company, Parent or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of any such Pari Passu Indebtedness) on a pro rata basis based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum amount (or accreted value, as applicable) of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by Parent or any Restricted Subsidiary of Parent, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.

(c)         The Company may make a Net Proceeds Offer at any time and from time to time in advance of its obligation to make a Net Proceeds Offer pursuant to Section 4.10(b). The Company may also defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $50.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $50.0 million, shall be applied as required pursuant to this paragraph). Upon completion of each Net Proceeds Offer, the amount of unutilized Net Proceeds Offer Amount will be reset at zero.

(d)         [RESERVED].

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(e)          Notwithstanding Sections 4.10(a) and 4.10(b), Parent and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such sections to the extent that:

(1)         at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and

(2)         such Asset Sale is for Fair Market Value; provided that any consideration not constituting Replacement Assets received by Parent or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and 4.10(b).

(f)           Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the date triggering the Company’s obligation to make such Net Proceeds Offer, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the pro rata portion of the Net Proceeds Offer Amount applicable to the Notes, the tendered Notes will be purchased on a pro rata basis (based on amounts tendered) subject to the minimum denominations of the Notes.

(g)          The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities Laws and regulations thereunder to the extent such Laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities Laws or regulations conflict with this Section 4.10, the Company shall comply with the applicable securities Laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.

Section 4.11         Transactions with Affiliates.

(a)          Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates involving aggregate value in excess of $10.0 million (each an “Affiliate Transaction”), other than:

  (1)           Affiliate Transactions permitted under Section 4.11(b); and

  (2)           Affiliate Transactions on terms, taken as a whole, that are no less favorable to Parent or the applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Parent or such Restricted Subsidiary.

If any such Affiliate Transaction (or a series of related Affiliate Transactions which are similar or part of a common plan) (x) involves aggregate payments or other property with a fair market value in excess of $25.0 million, Parent or such Restricted Subsidiary, as the case may be, shall file with the Trustee an Officer’s Certificate certifying that such Affiliate Transaction complies with this covenant and (y) involves aggregate payments or other property with a fair market value in excess of $50.0 million, Parent or such Restricted Subsidiary, as the case may be, shall file with the Trustee a resolution of the Board of Directors of Parent or such Restricted Subsidiary, as the case may be, set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of Parent or such Restricted Subsidiary.

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(b)         The restrictions set forth in Section 4.11(a) shall not apply to:

  (1)           indemnification, employment, consultancy, advisory, services or separation agreements or arrangements and benefit plans or arrangements and any transactions contemplated by any of the foregoing, including the payment of compensation, fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses, in each case, in respect of or provided on behalf of, current or former directors, officers, consultants or employees of Parent or any Restricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such directors, officers or employees) as determined in good faith by Parent’s or the Company’s Board of Directors or senior management;

  (2)           transactions exclusively between or among Parent and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries (including any entity that becomes a Restricted Subsidiary of Parent as a result of such transaction); provided such transactions are not otherwise prohibited by this Indenture;

  (3)           (A) any agreement or arrangement as in effect as of the Issue Date (or transactions pursuant thereto), (B) any other agreements or arrangements pursuant to or in connection with the Transactions or (C) any amendment, modification or supplement to the agreements referenced in clause (A) or (B) above or any replacement thereof, so long as the terms of such agreement or arrangement, as so amended, modified, supplemented or replaced, are not more disadvantageous to the Holders when taken as a whole in any material respect compared to the applicable agreements or arrangements as in effect on the Issue Date or as described in the Offering Circular, as applicable, as determined in good faith by Parent or the Company;

  (4)           Restricted Payments (or transfers or issuances that would constitute Restricted Payments but for the exclusions from the definition thereof) or Permitted Investments not prohibited by this Indenture;

  (5)           transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to Parent or the applicable Restricted Subsidiary in the reasonable determination of the Board of Directors or the senior management of Parent or the applicable Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;

  (6)           issuances or sales of Capital Stock (other than Disqualified Capital Stock) of Parent or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of Parent or any Restricted Subsidiary;

  (7)           transactions in which Parent or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to Parent or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 4.11(a)(2);

  (8)           payments to or the receipt of payments from, and the entry into and the consummation of transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Parent and the Restricted Subsidiaries in such joint venture) in the ordinary course of business to the extent otherwise permitted by this Indenture, so long as such payments or transactions are on terms that are not materially less favorable to Parent or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction;

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  (9)           the Transactions, in each case as disclosed in the Offering Circular, and the payment of all fees, expenses, bonuses and awards related thereto;

  (10)         transactions with a Person that is an Affiliate of Parent solely because Parent or one of its Restricted Subsidiaries owns an equity interest in such Person;

  (11)         the pledge of Equity Interests of Unrestricted Subsidiaries or joint ventures to support the Indebtedness thereof;

  (12)         transactions between Parent or any Restricted Subsidiary of Parent and any Person, a director of which is also a director of Parent or the Company; provided, that such director abstains from voting as a director of Parent or the Company on any matter involving such other Person;

  (13)         transactions with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;

  (14)         any incurrence of Indebtedness permitted by Section 4.09;

  (15)         transactions undertaken for the purpose of improving the consolidated tax efficiency of Parent or its Subsidiaries as determined in good faith by Parent; and

  (16)         Permitted Intercompany Activities, Cash Pooling Arrangements and related transactions.

Section 4.12         Liens.

(a)          Parent will not, and will not cause or permit the Company or any other Guarantor to, directly or indirectly, create, incur or assume any Liens of any kind against or upon any property or assets of Parent, the Company or any such Guarantor, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom (other than Permitted Liens) (such Lien, the “Initial Lien”), securing Indebtedness of Parent, the Company or a Guarantor, unless:

  (1)           in the case of Liens securing Subordinated Indebtedness, the Notes or the Note Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and

  (2)           in all other cases, the Notes or Note Guarantees, as the case may be, are equally and ratably secured.

(b)          Any Lien created for the benefit of the Holders of the Notes pursuant to Section 4.12(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien to which it relates.

(c)          For purposes of determining compliance with this Section 4.12, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in clauses (1) through (40) of the definition of “Permitted Liens” or pursuant to Section 4.12(a) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness meets the criteria of one or more of the categories of permitted Liens described in clauses (1) through (40) of the definition of “Permitted Liens” or pursuant to Section 4.12(a), the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such Lien or such item of Indebtedness secured by such Lien in one of the clauses of the definition of “Permitted Liens” and such Lien securing such item of Indebtedness will be treated as being incurred or existing pursuant to only one of such clauses or pursuant to Section 4.12(a).

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With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in subclause (7) of the definition of “Indebtedness.”

Section 4.13          [RESERVED].

Section 4.14         Corporate Existence.

Subject to Article 5 hereof, the Company shall do or cause to be done all things reasonably necessary to preserve and keep in full force and effect:

  (1)           its corporate existence in accordance with its organizational documents (as the same may be amended from time to time); and

  (2)           the rights (charter and statutory) of the Company;

provided, however, that the Company shall not be required to preserve any such right if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole.

Section 4.15         Offer to Repurchase Upon Change of Control.

(a)          Upon the occurrence of a Change of Control, the Company will offer to purchase all or a portion of such Holder’s Notes pursuant to the offer described below (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase.

Within 30 days following the date upon which the Change of Control occurred, the Company shall send a written notice to each Holder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state:

  (1)           that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;

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(2)           the purchase price and the purchase date, which (unless otherwise required by Law) shall be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”);

 

(3)           that any Note not tendered will continue to accrue interest in accordance with this Indenture;

 

(4)           that, unless the Company 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 after the Change of Control Payment Date;

 

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

 

(6)           that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and

 

(7)           that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

 

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities Laws and regulations thereunder to the extent such Laws and regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities Laws or regulations conflict with the provisions of this Section 4.15, the Company will comply with the applicable securities Laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.

 

(b)          On the Change of Control Payment Date, the Company will, to the extent lawful:

 

(1)           accept for payment all Notes or portions of Notes properly tendered and not properly withdrawn pursuant to the Change of Control Offer;

 

(2)           deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered and not properly withdrawn; and

 

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

 

The Paying Agent will promptly mail (but in any case not later than five days after the Change of Control Payment Date) to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee will 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 new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

 

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(c)            Notwithstanding anything to the contrary in this Section 4.15, the Company will 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 4.15 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer, or (2) a notice of redemption of all outstanding Notes has been given pursuant to Section 3.07 hereof, 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.

 

(d)            Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. In such a case, the related notice shall describe such condition, and if applicable, shall state that, in the Company’s discretion, the purchase date may be delayed until such time as such condition shall be satisfied, or such purchase may not occur and such notice may be rescinded in the event that such condition shall not have been satisfied by the purchase date, or by the purchase date as so delayed.

 

Section 4.16            Additional Amounts.

 

(a)            All payments made by or on behalf of any successor to the Company that is organized or incorporated in a jurisdiction outside the United States or any Guarantor (each a “Payor”) under or with respect to the Notes or any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any Taxes, unless such Payor is required to withhold or deduct an amount for, or on account of, Taxes by Law. If a Payor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is incorporated, organized, resident for tax purposes or carrying on a business for tax purposes or from or through which such Payor or its respective agents makes any payment on the Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the Notes or any Note Guarantee, including payments of principal, redemption price, purchase price, interest or premium, such Payor, subject to the exceptions stated below, will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by each Holder or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.

 

(b)            A Payor will not, however, pay Additional Amounts to a Holder or Beneficial Holder with respect to:

 

(1)            any United States withholding Taxes imposed, withheld, or deducted on any payment on or in respect of the Notes or any Note Guarantee;

 

(2)            Taxes giving rise to such Additional Amounts that would not have been imposed, withheld or deducted but for the existence of any present or former connection between such Holder or Beneficial Holder (or between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or person in possession of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, a trust, a limited liability company, a partnership, a corporation or other entity) and the Relevant Taxing Jurisdiction in which such Taxes are imposed (including being or having been, or treated as, a citizen, domiciliary, resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, holding or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee);

 

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(3)            Taxes giving rise to such Additional Amounts that would not have been imposed, withheld or deducted but for the failure of such Holder or Beneficial Holder, to the extent such Holder or Beneficial Holder is legally eligible to do so, to comply with any written request, made to that Holder or Beneficial Holder in writing at least 45 calendar days before any such withholding or deduction would be payable, by the Payor to satisfy any certification, identification, information, documentation or other reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, which are required by applicable Law, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, if applicable, a certification that the Holder or Beneficial Holder is not resident in the Relevant Taxing Jurisdiction);

 

(4)            any estate, inheritance, gift, value added, goods and services, harmonized sales, sales, transfer, capital gains, personal property or any similar Taxes or any excise tax imposed on the transfer of the Notes;

 

(5)            any Taxes that are imposed, withheld or deducted with respect to any payment on a Note or any Note Guarantee to any Holder who is a fiduciary, partnership, limited liability company or other fiscally transparent entity or person other than the sole Beneficial Owner of such payment and to the extent that no Additional Amounts would have been payable had the Beneficial Owner of the applicable Note been the holder of such Note;

 

(6)            Taxes imposed on, or deducted or withheld from, payments in respect of the Notes or any Note Guarantee if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes or Note Guarantee been presented for payment (where presentation is required) within 30 calendar days after the date on which such payments or such Notes or Note Guarantee became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes or Note Guarantee been presented on the last day of such 30-calendar day period);

 

(7)            Taxes giving rise to such Additional Amounts that would not have been imposed but for the presentation of any Note or any Note Guarantee for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the applicable Note or Note Guarantee to another paying agent;

 

(8)            any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Note Guarantee;

 

(9)            any Taxes imposed, withheld or deducted under FATCA; or

 

(10)          any combination of the foregoing clauses (1) through (9).

 

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(c)            At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders and/or Beneficial Holders on the payment date. The Trustee may rely conclusively on such Officer’s Certificate as conclusive proof that such payments are necessary. The Payor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.

 

(d)            The Payors will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provision, (other than Taxes described in Sections 4.16(b)(1) through (7) or Section 4.16(b)(9) or Taxes arising by reason of a transfer of a Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to the Notes or any Note Guarantee.

 

(e)             In addition, the Payor will pay and indemnify the Holder or Beneficial Holder for any present or future stamp, issue, registration, transfer, court, documentation, excise, property or other similar Taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction (and, in the case of enforcement, any jurisdiction) at any time in respect of the execution, issuance, registration, delivery or enforcement of the Notes, any Note Guarantee or any other document or instrument referred to thereunder, or the receipt of any payments with respect thereto (limited, solely in the case of Taxes, charges or duties attributable to the receipt of any payments with respect thereto, to any such Taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded under Sections 4.16(b)(1) through (7) or Section 4.16(b)(9) or any combination thereof).

 

(f)             The Payor will make all withholdings and deductions required by Law and will remit the full amount deducted or withheld to the applicable Taxing Authority in accordance with applicable Law. Upon request, the Payor will provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld.  Upon request, the Trustee will make available to Holders copies of those receipts or other documentation, as the case may be.  The Trustee will not be responsible for ensuring that the withholding and deduction of any amount has been properly made. Except as specifically provided above, no Payor shall be required to make a payment with respect to any Tax imposed by any government or any political subdivision or Taxing Authority of or in any government or political subdivision.

 

(g)            The obligations described under this Section 4.16 will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or Beneficial Holder of its Notes, and will apply (reflecting the applicable necessary changes) to any successor Person to any Payor and to any jurisdiction in which such successor is incorporated, organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents or any department or political subdivision thereof.

 

Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest, redemption price, purchase price or any other amount payable under or with respect to any Note or Note Guarantee, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.

 

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Section 4.17            Limited Condition Transactions; Financial Calculations.

 

When calculating the availability under any threshold based on a dollar amount, percentage of Consolidated Total Assets or other financial measure (a “basket”) or ratio under this Indenture, in each case, in connection with a Limited Condition Transaction, the date of determination of such basket or ratio and of any requirement that there be no Default or Event of Default may, at the option of Parent, be the date the definitive agreement(s) for such Limited Condition Transaction is entered into. Any such ratio or basket shall be calculated on a pro forma basis, including with such adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definitions of Consolidated Fixed Charge Coverage Ratio or Consolidated Total Assets, after giving effect to such Limited Condition Transaction and other transactions related thereto (including any incurrence or issuance of Indebtedness or preferred stock and the use of proceeds thereof) as if they had been consummated at the beginning of the applicable period (in the case of Consolidated EBITDA), as of the date of determination and at the end of the applicable period (in the case of Consolidated Total Assets) for purposes of determining the ability to consummate any such Limited Condition Transaction and any such related transactions; provided that if Parent elects to make such determination as of the date of such definitive agreement(s), then (i) if any of such ratios are no longer complied with or baskets are exceeded as a result of fluctuations in such ratio or basket (including due to fluctuations in Consolidated EBITDA, Consolidated Net Income or Consolidated Total Assets of Parent or the target company) subsequent to such date of determination and at or prior to the consummation of the relevant Limited Condition Transaction and any such related transactions, such ratios or baskets will not be deemed to have been no longer complied with or exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction and such related transactions are permitted under this Indenture, (ii) such ratios or baskets shall not be tested at the time of consummation of such Limited Condition Transaction and such related transactions, and (iii) during the period on and following the date of any such election by Parent with respect to a given Limited Condition Transaction and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement(s) for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any unrelated subsequent transaction (including the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Parent, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary) is permitted under this Indenture, any applicable ratio or basket shall be required to be satisfied (i) on a pro forma basis as set forth above, assuming such Limited Condition Transaction and other related transactions (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other related transactions (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.

 

Section 4.18            Additional Subsidiary Note Guarantees.

 

If any existing or future Restricted Subsidiary of Parent shall Guarantee any Indebtedness of Parent, the Company or any other Guarantor under (i) a Credit Facility or (ii) Capital Markets Indebtedness, in each case, in an aggregate principal amount with respect to clauses (i) and (ii) exceeding $100.0 million, then Parent and the Company shall, within 30 days of such event, cause such Restricted Subsidiary to:

 

(1)            execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and this Indenture on the terms set forth in this Indenture; and

 

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(2)            deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel that contains the statements set forth in Section 12.05 and that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and, only with respect to such Opinion of Counsel, that such supplemental indenture constitutes a legal, valid, binding and enforceable obligation of such Restricted Subsidiary.

 

Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture until such Restricted Subsidiary is released from its Note Guarantee as provided in this Indenture.

 

The form of such supplemental indenture is attached as Exhibit E hereto.

 

Section 4.19            Designation of Restricted and Unrestricted Subsidiaries.

 

Parent or the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of “Permitted Investments,” as determined by Parent or the Company. The designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.

 

Any designation of a Subsidiary of Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant.

 

Parent or the Company may at any time redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary of Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by Parent shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

 

Section 4.20            Changes in Covenants When Notes Rated Investment Grade.

 

Beginning on the date following the Issue Date that:

 

(1)            the Notes have an Investment Grade Rating; and

 

(2)            no Default or Event of Default shall have occurred and be continuing,

 

and ending on the date (the “Reversion Date”) that either Rating Agency ceases to have an Investment Grade Rating on the Notes (such period of time, the “Suspension Period”), the following Sections of this Indenture will no longer be applicable to the Notes:

 

(1)            Section 4.09 (Incurrence of Additional Indebtedness);

 

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(2)            Section 4.07 (Restricted Payments);

 

(3)            Section 4.10 (Asset Sales);

 

(4)            Section 4.08 (Dividend and Other Payment Restrictions Affecting Guarantors);

 

(5)            Section 4.11 (Limitations on Transactions with Affiliates); and

 

(6)            Section 5.01(a)(2) (Merger, Consolidation and Sale of Assets).

 

During a Suspension Period, the Company’s or Parent’s Board of Directors may not designate any of Parent’s Subsidiaries as Unrestricted Subsidiaries.

 

On the Reversion Date, all Indebtedness incurred during the Suspension Period will be classified to have been incurred pursuant to and permitted under Section 4.09(a) or one of the clauses set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be incurred thereunder as of the Reversion Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent any Indebtedness would not be permitted to be incurred pursuant to Section 4.09(a) or any of the clauses set forth in Section 4.09(b), such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified as Permitted Indebtedness under Section 4.09(b)(3) and permitted to be refinanced under Section 4.09(b)(16).

 

Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 4.07 will be made as though Section 4.07 had been in effect during the entire period of time after the Issue Date and prior to, but not during, the Suspension Period and, accordingly, all Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under Section 4.07(a)(iii). In addition, for purposes of Section 4.11, all Affiliate Transactions entered into by Parent or any of its Restricted Subsidiaries with an Affiliate of Parent during the applicable Suspension Period prior to such Reversion Date will be deemed to have been entered into on or prior to the Issue Date, and for purposes of Section 4.08, all contracts entered into during the applicable Suspension Period prior to such Reversion Date that contain any of the restrictions contemplated by such covenant will be deemed to have been existing on the Issue Date. For purposes of Section 4.10, on the Reversion Date, the unutilized Net Cash Proceeds amount will be reset to zero.

 

Notwithstanding the fact that covenants suspended during a Suspension Period may be reinstated, (1) no Default or Event of Default or breach of any kind will be deemed to have occurred, and none of Parent, the Company or any of Parent’s Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period or any actions taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to comply with such covenants during the Suspension Period or at the time such covenants are reinstated and (2) following a Reversion Date, Parent, the Company and each of Parent’s Restricted Subsidiaries will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.

 

The Company shall give the Trustee written notice of the start of any Suspension Period and in any event not later than five (5) Business Days after such Suspension Period has begun. The Company shall give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date.

 

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Article 5
SUCCESSORS

 

Section 5.01            Merger, Consolidation and Sale of Assets.

 

(a)            Parent will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of Parent to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of Parent’s assets (determined on a consolidated basis for Parent and Parent’s Restricted Subsidiaries), whether as an entirety or substantially as an entirety, to any Person unless:

 

(1)            either:

 

(A)          Parent shall be the surviving or continuing corporation; or

 

(B)           the Person (if other than Parent) formed by such consolidation or into which Parent is amalgamated, merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of Parent and of Parent’s Restricted Subsidiaries substantially as an entirety (the “Surviving Parent”):

 

(i)            shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia; and

 

(ii)           shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee and the Surviving Entity will take such action as may be reasonably necessary or required to cause all of the obligations of Parent on its Guarantee;

 

(2)            immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(ii) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), Parent or such Surviving Parent, as the case may be, (a) would be able to incur at least $1.00 of additional Indebtedness pursuant to the Section 4.09(a) or (b) the Consolidated Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries would not be lower than it was immediately prior to such transaction;

 

(3)            immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(ii) above, if applicable (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and

 

(4)            Parent or the Surviving Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

 

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(b)            The Company will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or into any Person unless:

 

(1)            either:

 

(A)          the Company shall be the surviving or continuing corporation; or

 

(B)           the Person (if other than the Company) formed by such consolidation or into which the Company is amalgamated or merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”):

 

(i)            shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union; provided that in the case where the Surviving Entity is not a corporation, a co-obligor of the Notes is a corporation shall be an entity organized or validly existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union; and

 

(ii)           shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;

 

(2)            immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(b)(1)(B)(ii) above, if applicable (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and

 

(3)            the Company or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

 

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of Parent (other than the Company), the Capital Stock of which constitutes all or substantially all of the properties and assets of Parent or the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of Parent or the Company.

 

Upon any amalgamation, consolidation, combination or merger or any transfer of all or substantially all of the assets of Parent or the Company in accordance with Section 5.01(a), in which Parent or the Company, as applicable, is not the continuing corporation, the successor Person formed by such consolidation or into which Parent or the Company is amalgamated or merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, Parent or the Company, as applicable, under this Indenture and the Notes with the same effect as if such surviving entity had been named as such and all financial information and reports required by this Indenture shall be provided by and for such surviving entity.

 

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Clause (a) of the above covenant will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and the Restricted Subsidiaries (including the Company). Clause (b) of the above covenant will not apply to any merger or consolidation of the Company (x) with or into Parent or one of its Restricted Subsidiaries for any purpose so long as the Surviving Entity becomes a primary obligor of the Notes or (y) with or into an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction so long as the Surviving Entity becomes a primary obligor of the Notes; provided, however, if such Person is not a corporation, a co-obligor of the Notes is a corporation organized or existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom or any member state of the European Union.

 

Section 5.02            Successor Corporation Substituted.

 

Upon any amalgamation, consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is amalgamated, merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be released and discharged of all obligations and covenants under this Indenture and the Notes; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, premium on, if any, and interest, if any, on, the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof.

 

Article 6
DEFAULTS AND REMEDIES

 

Section 6.01            Events of Default.

 

(a)            Each of the following is an “Event of Default”:

 

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

 

(2)            the failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer and the failure to make a payment upon a required redemption as described in Section 3.09) on the date specified for such payment in the applicable offer to purchase;

 

(3)            a default in the observance or performance of any other covenants or agreements which default continues for a period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except, in the case of a default with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement);

 

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(4)            the failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of Parent or any Restricted Subsidiary of Parent (other than Indebtedness owing to Parent or any Restricted Subsidiary), including the Secured Notes, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by Parent or such Restricted Subsidiary of notice of any such acceleration), including the Secured Notes, if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness, including the Secured Notes, in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 20-day period described above has passed), aggregates $75.0 million or more at any time;

 

(5)            one or more final judgments in an aggregate amount of $75.0 million or more (net of any amounts which are covered by enforceable insurance policies issued by solvent carriers, to the extent such coverage has not been denied) shall have been rendered against Parent or any of its Significant Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable;

 

(6)            Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:

 

(A)            commences a voluntary case or proceeding,

 

(B)            consents to the entry of an order for relief against it in an involuntary case or proceeding,

 

(C)            consents to the appointment of a trustee, interim receiver, receiver, receiver and manager, liquidator, administrator, custodian, sequestrator, agent or other similar official of it or for all or substantially all of its property,

 

(D)            makes a general assignment for the benefit of its creditors, or

 

(E)            generally is not paying its debts as they become due;

 

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

 

(A)            is for relief against Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding;

 

(B)            appoints a custodian of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary; or

 

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(C)            orders the liquidation or winding up of Parent or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of Parent that, taken together, would constitute a Significant Subsidiary;

 

and the order or decree remains unstayed and in effect for 60 consecutive days; or

 

(8)            any Note Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Note Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Note Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Note Guarantee (other than by reason of release of a Guarantor in accordance with the terms of this Indenture).

 

(b)            The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes unless a written notice of such Default or Event of Default shall have been given to a Responsible Officer of the Trustee by Parent, the Company or any Holder.

 

Section 6.02           Acceleration.

 

(a)            If an Event of Default (other than an Event of Default specified in Section 6.01(a)(6) or 6.01(a)(7) with respect to Parent or the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes may declare the principal of and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Company and the Trustee specifying the applicable Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.

 

(b)            If an Event of Default specified in Section 6.01(a)(6) or 6.01(a)(7) with respect to Parent or the Company occurs and is continuing, then all unpaid principal of, and premium, if any, plus accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

(c)            At any time after a declaration of acceleration with respect to the Notes as described in Section 6.02(a) or 6.02(b), the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and cancel such declaration and its consequences:

 

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

 

(2)            if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;

 

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

 

(4)            if the Company has paid the Trustee compensation and reimbursed the Trustee for its expenses, disbursements and advances; and

 

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(5)            in the event of the cure or waiver of an Event of Default of the type described in Section 6.01(a)(6) or Section 6.01(a)(7), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.

 

No such rescission shall affect any subsequent Default or impair any right consequent thereto.

 

(d)            In the event of any Event of Default specified in Section 6.01(a)(4), such Event of Default and all consequences thereof (excluding, however, any resulting payment default) will be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders of the Notes, if within 20 days after such Event of Default arose Parent delivers an Officer’s Certificate to the Trustee stating that (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged or (y) the requisite number of holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default has been cured, it being understood that in no event shall an acceleration of the principal amount of the Notes as described above be annulled, waived or rescinded upon the happening of any such events.

 

(e)            Notwithstanding anything herein to the contrary, to the extent any information is not provided within the time periods specified in Section 4.03 and such information is subsequently provided within 30 days following such time periods, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.

 

Section 6.03           Other Remedies.

 

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by Law.

 

Section 6.04           Waiver of Past Defaults.

 

The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of principal of, premium on, if any, or interest, if any, on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.05           Control by Majority.

 

Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with Law or this Indenture or the Notes, or that, subject to the terms of this Indenture, the Trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in liability (it being expressly understood that the Trustee shall not have an affirmative duty to ascertain whether such action is prejudicial), unless the Trustee is offered security and indemnity satisfactory to each of them against any loss, claim, liability, cost or expense to the Trustee that may result from the Trustee following such direction.

 

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Section 6.06           Limitation on Suits.

 

No Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:

 

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

 

(2)            Holders of at least 25% in aggregate principal amount of the then outstanding Notes have made a written request to the Trustee to pursue the remedy;

 

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

 

(4)            the Trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and

 

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

 

Section 6.07           Rights of Holders to Receive Payment.

 

Notwithstanding any other provision of this Indenture, the contractual right of any Holder of a Note to receive payment of principal of, premium on, if any, or interest, if any, on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be amended without the consent of such Holder.

 

Section 6.08           Collection Suit by Trustee.

 

If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium on, if any, and interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

Section 6.09           Trustee May File Proofs of Claim.

 

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

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Section 6.10           Priorities.

 

If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

 

First:  to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second:  to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively; and

 

Third:  to the Company or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

 

Section 6.11           Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.

 

Article 7
TRUSTEE

 

Section 7.01           Duties of Trustee.

 

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

 

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(b)            Except during the continuance of an Event of Default:

 

(1)            the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)            in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(c)            The Trustee may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 7.02           Rights of Trustee.

 

(a)            The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

 

(b)            Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

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

 

(d)            The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

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

 

(f)            The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

 

(g)            The Trustee shall not be bound to make any investigation into the facts or matters stated in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note, coupon, security other evidence of indebtedness or other paper or document.

 

(h)            The Trustee shall have no duty to inquire as to the performance of the covenants of Parent, the Company and/or their Restricted Subsidiaries in this Indenture and shall be entitled to assume that the Company, the Guarantors and any Restricted Subsidiaries are in compliance with the terms of this Indenture.

 

(i)            The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so.

 

(j)            Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to loss of business, goodwill, opportunity or profits of any kind) of the Company, any Guarantor, any Restricted Subsidiary or any other person, even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(k)            In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of, or caused by, directly or indirectly, forces beyond its control, including acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, pandemics, epidemics, recognized public emergencies, quarantine restrictions, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

(l)            The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

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Section 7.03           Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.10 hereof.

 

Section 7.04           Trustee’s Disclaimer.

 

The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

Section 7.05           Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and if it is known to a Responsible Officer of the Trustee, the Trustee will mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium on, if any, or interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes.

 

Section 7.06           [RESERVED].

 

Section 7.07           Compensation and Indemnity.

 

(a)           The Company will pay to the Trustee from time to time such compensation as shall be agreed in writing for its acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be limited by any Law on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(b)            The Company and the Guarantors will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its own gross negligence, willful misconduct or bad faith. The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

 

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(c)            The obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.

 

(d)            To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium on, if any, or interest, if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.

 

(e)            When the Trustee incurs expenses or renders services after an Event of Default specified in clause (6) or (7) of Section 6.01(a) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 7.08           Replacement of Trustee.

 

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

 

(b)            The Trustee may resign in writing at any time upon 30 days’ notice and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee upon 30 days’ notice by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

 

(1)            the Trustee fails to comply with Section 7.10 hereof;

 

(2)            the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

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

 

(4)            the Trustee becomes incapable of acting.

 

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

 

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

 

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

 

(f)            A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.

 

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Section 7.09           Successor Trustee by Merger, etc.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.

 

Section 7.10           Eligibility; Disqualification.

 

There will at all times be a Trustee hereunder that is a corporation organized and doing business under the Laws of the United States of America or of any state thereof that is authorized under such Laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.

 

Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.01           Option to Effect Legal Defeasance or Covenant Defeasance.

 

The Company may at any time elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Article 8.

 

Section 8.02           Legal Defeasance and Discharge.

 

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

 

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

 

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

 

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(3)            the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection therewith; and

(4)            this Article 8.

Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section 8.03          Covenant Defeasance.

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company, Parent and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under any or all of the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15, 4.16, 4.18 and 4.19 hereof and clause (2) of Section 5.01(a) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3), (4), (5), and (8) hereof will not constitute Events of Default.

Section 8.04          Conditions to Legal or Covenant Defeasance.

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:

(1)            the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, Government Securities, rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof (or, in each case, if such Rating Agency ceases to rate such securities, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency), in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm, to pay the principal of, premium, if any, and interest on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be;

(2)            in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that: (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (ii) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax Law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and Beneficial Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

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

(4)            no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or an Event of Default resulting from a transaction occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such deposit and the grant of any Lien securing such borrowings);

(5)            such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a Default or an Event of Default resulting from a transaction occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such deposit and the grant of any Lien securing such borrowings) or any other material agreement or instrument (including the Senior Secured Credit Facilities and the Secured Notes) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

(6)            the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and

(7)            the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.

Section 8.05          Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.

Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by Law.

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by Law is for the account of the Holders of the outstanding Notes.

Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

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Section 8.06          Repayment to Company.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

Section 8.07          Reinstatement.

If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium on, if any, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

Article 9
AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01          Without Consent of Holders.

Notwithstanding Section 9.02 of this Indenture, without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:

(1)            to cure any ambiguity, omission, mistake, defect, or inconsistency; provided that such change does not adversely affect the rights of any of the Holders in any material respect;

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

(3)            to add a Guarantee with respect to the Notes;

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(4)            to provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees by a successor to the Company or such Guarantor pursuant to Article 5 or Article 10 hereof;

(5)            to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any Holder;

(6)            to conform the text of this Indenture, the Notes or the Note Guarantees to any provision of the “Description of Unsecured Notes” section of the Offering Circular, to the extent that such provision in that “Description of Unsecured Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Note Guarantees, which intent may be evidenced by an Officer’s Certificate to that effect;

(7)            at the Company’s election, to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act of 1939, as amended, if the Company elects to so qualify this Indenture, and, if so qualified, maintain the qualification of this Indenture under the TIA;

(8)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;

(9)            to allow any Guarantor to execute a supplemental indenture (including to evidence its Note Guarantee) and/or a Note Guarantee with respect to the Notes; provided that any such supplemental indenture need be signed only by the Company, the added Guarantor and the Trustee;

(10)          to provide for any Subsidiary of the Company or any other Person to provide a Note Guarantee, to add Note Guarantees with respect to the Notes, to add security to or for the benefit of Holders of the Notes, or to confirm and evidence the release, termination or discharge of (i) any Note Guarantee of the Notes or (ii) any Lien then securing the Notes, when required or not prohibited by this Indenture; or

(11)           to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities Laws and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect.

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that adversely affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02          With Consent of Holders.

Except as provided in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including Section 4.10 and 4.15 hereof) and the Notes and the Note Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest, if any, on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.

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Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.

It is not necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture, the Notes or the Note Guarantees. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

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

(2)            reduce the rate of, or change the time for payment of, interest, including defaulted interest, on any Notes;

(3)            reduce the principal of, or change the fixed maturity of, any Notes, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor;

(4)            make any Notes payable in money other than that stated in the Notes;

(5)            make any change in the contractual provisions of this Indenture protecting the legal right of each Holder to receive payment of principal of and interest on such Note on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in aggregate principal amount of Notes outstanding to waive Defaults or Events of Default;

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(6)            after the Company’s obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control or make and consummate a Net Proceeds Offer with respect to any Asset Sale that has been consummated or, after such Change of Control has occurred or such Asset Sale has been consummated, modify any of the provisions or definitions with respect thereto;

(7)            release any Guarantor that is a Significant Subsidiary from any of its obligations under its Note Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture;

(8)            make any change in the provisions of this Indenture described under Section 4.16 that adversely affects the right of any Holder or Beneficial Holder in any material respect or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof;

(9)            make any change in the preceding amendment and waiver provisions; or

(10)          expressly subordinate the Notes or any Note Guarantee to any other Indebtedness of Parent, the Company or any other Guarantor.

Notwithstanding anything to the contrary herein, prior to the Escrow End Date, any modifications, waivers, amendments, consents or eliminations of any provision under this Indenture or the Escrow Agreement related to any matters described Section 3.09 hereof or Section 4 of the Escrow Agreement will require the consent of each Holder affected thereby (except for modifications or amendments that (i) cure any ambiguity, omission, mistake, defect, error or inconsistency, (ii) provide additional rights or benefits to the Holders or do not materially adversely affect the legal rights under this Indenture or the Escrow Agreement of the Holders, (iii) evidence or provide for the acceptance and appointment of a successor Escrow Agent, or (iv) conform the text of this Indenture or the Escrow Agreement to any provision of the Offering Circular, as set forth in an Officer’s Certificate, which may be made by the Company and the Trustee or Escrow Agent, as applicable).

Section 9.03          Revocation and Effect of Consents.

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

Section 9.04          Notation on or Exchange of Notes.

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

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Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.

Section 9.05          Trustee to Sign Amendments, etc.

The Trustee will sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

Notwithstanding anything to the contrary herein, no Opinion of Counsel will be required for the Trustee to execute any amendment or supplement entered into in connection with adding or releasing a Guarantor; provided that the Trustee shall be entitled to conclusively rely on an Officer’s Certificate in executing such amendment or supplement or delivering such release and shall have no liability to any person for so relying.

Article 10
NOTE GUARANTEES

Section 10.01        Guarantee.

(a)            Subject to this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:

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

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

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b)           Subject to this Article 10, the Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

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

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

Section 10.02        Limitation on Guarantor Liability.

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

Section 10.03        Execution and Delivery of Supplemental Indenture.

To evidence its Note Guarantee set forth in ‎Section 10.01 hereof, each Guarantor hereby agrees that its execution and delivery of this Indenture or, if applicable, any supplemental indenture pursuant to ‎Section 4.18 hereof and this ‎Section 10.03 shall evidence its Note Guarantee set forth in ‎Section 10.01 hereof without the need for notation on the Notes.

If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

If, after the Issue Date, any Restricted Subsidiary of the Company Guarantees any Indebtedness of the Company or a Guarantor under (i) a Credit Facility or (ii) Capital Markets Indebtedness in an aggregate principal amount exceeding $100.0 million, if required by Section 4.18 hereof, the Company will cause such Restricted Subsidiary to comply with the provisions of Section 4.18 hereof and this Article 10, to the extent applicable.

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Section 10.04        Guarantors May Consolidate, etc., on Certain Terms.

Except as otherwise provided in Section 10.05 hereof, each Guarantor will not, and Parent and the Company will not cause or permit any Guarantor to, amalgamate or consolidate with or merge with or into any Person other than Parent, the Company or any other Guarantor unless:

(1)            the entity formed by or surviving any such amalgamation, consolidation or merger (if other than such Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is an entity organized or existing under the Laws of Canada (or any province or territory thereof), Laws of the United States or any State thereof or the District of Columbia, the United Kingdom, any member state of the European Union or such other jurisdiction as such Guarantor was organized or existing under (such Guarantor or Person, as the case may be, the “Surviving Guarantor”);

(2)            the Surviving Guarantor (if other than such Guarantor) assumes by supplemental indenture all of the obligations of the Guarantor on its Note Guarantee; and

(3)            immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing.

Any amalgamation, merger or consolidation of, or sale, assignment, transfer, lease, conveyance or other disposition of assets by, a Guarantor with Parent or the Company (with Parent or the Company being the surviving entity in case of an amalgamation, merger of consolidation) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with Section 5.01(a)(4).

In case of any such amalgamation, consolidation, merger, sale, assignment, transfer, or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Except as set forth in Articles 4 and 5 hereof, and notwithstanding clause (1) above, nothing contained in this Indenture or in any of the Notes will prevent any amalgamation, consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale, assignment, transfer, or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

Section 10.05        Releases.

(a)            In the event of any sale, assignment, transfer, conveyance, or other disposition of all or substantially all of the assets of any Guarantor, by way of amalgamation, merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) Parent, the Company or a Restricted Subsidiary of Parent or the Company, then the corporation acquiring the property will be released and relieved of any obligations under the Note Guarantee;

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(b)           In the event of any sale, assignment, transfer, conveyance, or other disposition of Capital Stock of any Guarantor to a Person that is not (either before or after giving effect to such transaction) Parent, the Company or a Restricted Subsidiary of Parent or the Company and such Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or other disposition, then such Guarantor will be released and relieved of any obligations under its Note Guarantee;

provided, in both cases, that the Net Cash Proceeds of such sale, assignment, transfer, conveyance, or other disposition are applied in accordance with the applicable provisions of this Indenture, including Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such sale, assignment, transfer, conveyance, or other disposition was made by the Company in accordance with the provisions of this Indenture, including Section 4.10 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

(c)           Upon designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.

(d)           Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.

(e)           A Guarantor’s Note Guarantee shall be automatically released upon such Guarantor being released from or discharged of, its Guarantee of, and all pledges and security, if any, granted by such Guarantor in connection with, the Senior Secured Credit Facilities, the Secured Notes Indenture or such other Guarantee that resulted in the creation of such Note Guarantee (except, in the case of the Senior Secured Credit Facilities and the Secured Notes Indenture, a release by or as a result of a payment thereon).

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain liable for the full amount of principal of, premium on, if any, and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.

Article 11
satisfaction and discharge

Section 11.01        Satisfaction and Discharge.

This Indenture (including the Notes and the Note Guarantees) will be discharged and this Indenture will cease to be of further effect as to all Notes and Note Guarantees issued hereunder, when:

(1)            either:

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

(b)            all Notes not theretofore delivered to the Trustee for cancellation have become due and payable or will become due and payable within one year (or are to be called for redemption within one year), and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient (in the opinion of a nationally recognized firm of independent certified public accountants) to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;

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(2)            the Company has paid all other sums payable under this Indenture by the Company; and

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

In the case of satisfaction and discharge, upon any redemption that requires the payment of the Applicable Premium, the amount deposited with the Trustee shall be sufficient for purposes of Section 11.01(1)(b) to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of three Business Days prior to the date of such deposit, with any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption.

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to Section 11.01(1)(b), the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.

Section 11.02         Application of Trust Money.

Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by Law.

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium on, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

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Article 12
MISCELLANEOUS

Section 12.01         [RESERVED].

Section 12.02         Notices.

Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission, given by electronic mail in PDF format or overnight air courier guaranteeing next day delivery, to the others’ address:

If to the Company and/or any Guarantor:

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

Email: legal@ritchiebros.com

Attention: Treasurer and Corporate Secretary

With a copy to:

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue

Palo Alto, California 94301

Email: Gregg.Noel@skadden.com

Attention: Gregg Noel

If to the Trustee:

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com

Attention: Linda A. McConkey, Vice President

The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses, including electronic mail addresses, for subsequent notices or communications.

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile or delivered by electronic mail (in PDF format); and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

Any notice or communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar or, with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically. Failure to deliver, mail, transmit or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.

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If a notice or communication is delivered, mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

If the Company mails or sends a notice or communication to Holders, it will mail or send a copy to the Trustee and each Agent at the same time.

Section 12.03        Communication by Holders with Other Holders.

Holders may communicate with other Holders with respect to their rights under this Indenture or the Notes.

Section 12.04        Certificate and Opinion as to Conditions Precedent.

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

(1)            an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

Section 12.05        Statements Required in Certificate or Opinion.

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificate required by Section 4.04) must include:

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3)            a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(4)            a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Section 12.06        Rules by Trustee and Agents.

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 12.07        No Personal Liability of Directors, Officers, Employees and Stockholders.

No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

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Section 12.08        Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company, each of the Guarantors and the Trustee agree that any suit, action or proceeding arising out of or based upon this Indenture may be instituted in any State or U.S. federal court located in The City of New York and County of New York, and waives any objection that such party may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and each Guarantor agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and each Guarantor, as applicable, and may be enforced in any court to the jurisdiction of which the Company and each Guarantor, as applicable, is subject by a suit upon such judgment.

The Company and each of the Guarantors irrevocably appoint RBA Holdings Inc. as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Company or any such Guarantor, as the case may be, by the person serving the same to the address provided in Section 12.02, shall be deemed in every respect effective service of process upon the Company and such Guarantor in any such suit or proceeding. RBA Holdings Inc. hereby accepts such appointment and agrees to act as such authorized agent for service of process. The Company and each of the Guarantors further agree to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent (or a successor authorized agent that has been validly appointed and which has accepted such appointment; provided the Company notifies the Trustee of such succession in writing) in full force and effect until no Notes remain outstanding.

THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.

Section 12.09        No Adverse Interpretation of Other Agreements.

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 12.10        Successors.

All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05.

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Section 12.11        Severability.

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 12.12        Counterpart Originals.

The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture and signature pages for all purposes.

Section 12.13        Table of Contents, Headings, etc.

The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.

Section 12.14        USA PATRIOT Act.

The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplanted from time to time, the “USA PATRIOT Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

Section 12.15         Interest Act (Canada).

Solely for purposes of disclosure under the Interest Act (Canada), whenever a rate of interest or fee under a secured note is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee shall be expressed as a yearly rate by multiplying such rate of interest or fee by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

Section 12.16        Usury Saving Clause.

If any provision of this Indenture, the Note Guarantee or the Notes would obligate the Company or any Guarantor that is a Canadian Restricted Subsidiary to make any payment of or on account of interest or other amount in an amount or calculated at a rate which would result in a receipt by any Holder of interest at a criminal rate (as such term is construed under the Criminal Code (Canada)), then notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not so result in a receipt by such Holder of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing the amount or rate of interest required to be paid to such Holder, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to such Holder which would constitute “interest” for purposes of Section 347 of the Criminal Code (Canada).

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Section 12.17        Limitations Act, 2002 (Ontario).

Any and all limitation periods provided for in the Limitations Act, 2002 (Ontario), as amended from time to time, or any other applicable Law limiting the time for which an action may be commenced shall be excluded from application to the obligations of any Guarantor hereunder to fullest extent permitted by such act or applicable Law.

[Signatures on following page]

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SIGNATURES

Dated as of March 15, 2023
	Ritchie Bros. Holdings Inc.
	By:	/s/ Timothy Kirschbaum
		Name: Timothy Kirschbaum
		Title: Treasurer and Corporate Secretary
	Ritchie Bros. Auctioneers Incorporated
	By:	/s/ Darren Watt
		Name: Darren Watt
		Title: SVP, General Counsel & Corporate Secretary

U.S. Bank Trust Company, National Association, as Trustee
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President

EXHIBIT A

[Face of Note]

CUSIP/ISIN ____________

7.750% Senior Notes due 2031

No. ___           $____________

RITCHIE BROS. HOLDINGS INC.

promises to pay to                or registered assigns,

the principal sum of __________________________________________________________ DOLLARS [(or, in the event of adjustment in accordance with the within-mentioned Indenture, such other amount as may be stated from time to time on the “Schedule of Exchanges of Interests in the Global Note” attached hereto)]* on March 15, 2031.

Interest Payment Dates: March 15 and September 15

Record Dates: March 1 and September 1

*            The bracketed language should be included only if the Note is issued in global form.

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Dated:
	RITCHIE BROS. HOLDINGS INC.
	By:
		Name:
		Title:

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This is one of the Notes referred to in the within-mentioned Indenture:
U.S. Bank Trust Company, National Association, as Trustee
By:
	Authorized Signatory

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[Back of Note]
7.750% Senior Notes due 2031

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Canadian Legend]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1)            Interest. Ritchie Bros. Holdings Inc., a Washington corporation (the “Company”), promises to pay or cause to be paid interest on the principal amount of this Note at 7.750% per annum from March 15, 2023 until maturity. The Company will pay interest, if any, semi-annually in arrears on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that, if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be September 15, 2023. The Company will pay interest (including post-petition interest in any case or proceeding under any Bankruptcy Law) on overdue principal at the interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any case or proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.

Interest on the secured notes will be computed on the basis of a 360-day year comprised of twelve 30 day months. Solely for purposes of disclosure under the Interest Act (Canada), whenever a rate of interest or fee under a secured note is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee shall be expressed as a yearly rate by multiplying such rate of interest or fee by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

(2)            Method of Payment. The Company will pay interest on the Notes (except defaulted interest), if any, to the Persons who are registered Holders at the close of business on the March 1 or September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Paying Agent and Registrar within the Borough of Manhattan, The City of New York, or, at the option of the Company, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium on, if any, and interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent; provided, further, that the Company will pay all principal, interest and premium, if any, on any Global Notes registered in the name of DTC or its nominee in immediately available funds to DTC or such nominee, as the case may be, as the registered holder of such Global Notes. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

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(3)            Paying Agent and Registrar. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

(4)            Indenture. The Company issued the Notes under an Indenture dated as of March 15, 2023 (the “Indenture”) among the Company, Parent and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5)            Optional Redemption.

(a)            At any time prior to March 15, 2026, the Notes will be redeemable, at the Company’s option, in whole or in part from time to time, upon not less than 10 nor more than 60 days’ written notice, at a price equal to 100% of the principal amount thereof plus the Applicable Premium plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date).

(b)            In addition, the Company may redeem the Notes at its option, in whole or in part, upon not less than 10 nor more than 60 days’ written notice, at the following redemption prices (expressed as percentages of the principal amount thereof) plus accrued and unpaid interest, if any, to, but excluding, the redemption date if redeemed during the 12-month period commencing on March 15 of the year set forth below:

Year	Percentage
2026		103.8750	%
2027		101.9375	%
2028 and thereafter		100.000	%

In addition, the Company must pay accrued and unpaid interest on the Notes redeemed to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date).

(c)            At any time, or from time to time, on or prior to March 15, 2026 the Company may, at its option, use an amount of cash up to the Net Cash Proceeds of one or more Equity Offerings to redeem, upon not less than 10 nor more than 60 days’ written notice up to 40% of the principal amount of the Notes (including any Additional Notes) outstanding under the Indenture at a redemption price of 107.750% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date); provided that:

(1)            at least 50% of the principal amount of Notes (including any Additional Notes) outstanding under the Indenture remains outstanding immediately after any such redemption; and

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(2)            the Company makes such redemption not more than 90 days after the consummation of any such Equity Offering.

(d)            If, as a result of:

(1)            any amendment to, or change in, the Laws or treaties (or regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction which is announced and becomes effective on or after the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date); or

(2)            any amendment to, or change in, the existing official written position or the introduction of a written official position regarding the application, interpretation, administration or assessing practices of any such Laws, regulations or rulings of any Relevant Taxing Jurisdiction, or a judicial decision rendered by a court of competent jurisdiction (whether or not made, taken or reached with respect to the Company or any of the Guarantors) which is announced on or after, and becomes effective on or after (for the avoidance of doubt, including retroactive implementation with an effective date prior to) the Issue Date (or, where a jurisdiction in question does not become a Relevant Taxing Jurisdiction until a later date, such later date),

any Payor has become or will become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or a Note Guarantee, as applicable, Additional Amounts or indemnification payments as described under Section 4.16 of the Indenture with respect to the Relevant Taxing Jurisdiction, which payment the Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) cannot avoid with the use of reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), then the Company may, at its option, redeem all but not less than all of the Notes, upon not more than 60 days’ notice prior to the earliest date on which a Payor would be required to pay such Additional Amounts or indemnification payments, at a redemption price of 100% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders on the applicable record date to receive interest due on the applicable Interest Payment Date). The Company will not give any such notice of redemption unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect. Prior to the giving of any notice of redemption described in Section 3.07(d) of the Indenture, the Company will deliver to the Trustee a written opinion of independent legal counsel to the Payor of recognized standing and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld, conditioned or delayed), to the effect that the Payor has or will become obligated to pay such Additional Amounts or indemnification payments as a result of an amendment or change described above.

In addition, prior to the giving of any such notice of redemption, the Company will deliver to the Trustee an Officer’s Certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by the applicable Payor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Company or another Payor without the obligation to pay Additional Amounts) taking reasonable measures available to it; provided that changing the jurisdiction of incorporation or formation of the applicable Payor shall not be considered a reasonable measure.

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The Trustee will accept and may rely conclusively on such Officer’s Certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.

(e)            Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.

(6)            Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes, other than a Special Mandatory Redemption under Section 3.09 of the Indenture.

(7)            Repurchase at the Option of Holder.

(a)            Upon the occurrence of a Change of Control, the Company will offer to purchase all or a portion of such Holder’s Notes pursuant to the offer described in Section 4.15 of the Indenture (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Company shall send a written notice to each Holder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer.

(b)            Subject to Section 4.10(a) of the Indenture, if any Net Cash Proceeds have not been applied as provided in clauses (3)(A), (3)(B) and (3)(C) thereof within the applicable time period or the last provision of this sentence, such Net Cash Proceeds shall be applied by the Company, Parent or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the date that triggered the Company’s obligation to make such Net Proceeds Offer, from all Holders (and holders of any such Pari Passu Indebtedness) on a pro rata basis based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness on the date the Net Proceeds Offer is made, the maximum amount (or accreted value, as applicable) of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by Parent or any Restricted Subsidiary of Parent, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with Section 4.10 of the Indenture.

(8)            Notice of Redemption. Except as described above under Section 3.09 of the Indenture, notice of redemption will be sent electronically or mailed by first-class mail at least 10 but not more than 60 days before the redemption date to each Holder at its registered address, except that redemption notices may be 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 the Indenture pursuant to Articles 8 or 11 of the Indenture. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.

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Notice of any redemption of the Notes in connection with a corporate transaction (including an Equity Offering, an incurrence of Indebtedness, an amalgamation, consolidation or merger or a Change of Control) may, at the Company’s discretion, be given prior to the completion thereof and any such redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related transaction. 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 Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived by the Company (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 redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.

(9)            Denominations, Transfer, Exchange. The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by Law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.

(10)          Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.

(11)          Amendment, Supplement and Waiver. The Indenture, the Notes or the Note Guarantees may be amended or supplemented in accordance with Article 9 of the Indenture.

(12)          Defaults and Remedies. The Notes are subject to the Events of Default and remedies set forth in Article 6 of the Indenture. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(13)          Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

(14)          No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

(15)          Authentication. This Note will not be valid until authenticated by the manual, facsimile or electronic signature of the Trustee or an authenticating agent.

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(16)          Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17)          Guarantees. This Note is guaranteed as set forth in the Indenture.

(18)          CUSIP/ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP/ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP/ISIN numbers in notices (including notices of redemption) as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice, and reliance may be placed only on the other identification numbers placed thereon.

(19)          GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516
Attention: Treasurer and Corporate Secretary

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Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:
	(Insert assignee’s legal name)

(Insert assignee’s soc. sec. or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

and irrevocably appoint _______________________________________to transfer this Note on the books of the Company. The agent may substitute another to act for him.

Date:

Your Signature:

(Sign exactly as your name appears on the face of this Note)

Signature Guarantee*:

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

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Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

¨ Section 4.10       ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$_______________

Date:

Your Signature:

(Sign exactly as your name appears on the face of this Note)

Tax Identification No.:

Signature Guarantee*:

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

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Schedule of Exchanges of Interests in the Global Note *

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

Date of Exchange Amount of
decrease in
Principal Amount
of
this Global Note Amount of
increase in
Principal Amount
of
this Global Note Principal Amount
of this Global Note
following such
decrease
(or increase) Signature of
authorized officer
of Trustee or
Custodian

* This schedule should be included only if the Note is issued in global form.

A-12

EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com

Attention: Linda A. McConkey, Vice President

Re: 7.750% Senior Notes due 2031

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1. ¨ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2. ¨ Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

B-1

3. ¨ Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a)            ¨  such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

or

(b)            ¨  such Transfer is being effected to the Company or a subsidiary thereof;

or

(c)            ¨  such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

or

(d)           ¨  such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.

4. ¨ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

B-2

(a)  ¨ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(b)  ¨ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c)  ¨ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

	[Insert Name of Transferor]
By:
	Name:
	Title:

Dated:

B-3

ANNEX A TO CERTIFICATE OF TRANSFER

1.             The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

(a)            ¨ a beneficial interest in the:

(i)            ¨ 144A Global Note (CUSIP _________), or

(ii)           ¨ Regulation S Global Note (CUSIP _________), or

(iii)          ¨ IAI Global Note (CUSIP _________); or

(b)            ¨ a Restricted Definitive Note.

2.             After the Transfer the Transferee will hold:

[CHECK ONE]

(a)            ¨ a beneficial interest in the:

(i)            ¨ 144A Global Note (CUSIP _________), or

(ii)           ¨ Regulation S Global Note (CUSIP _________), or

(iii)          ¨ IAI Global Note (CUSIP _________); or

(iv)          ¨ Unrestricted Global Note (CUSIP _________); or

(b)            ¨ a Restricted Definitive Note; or

(c)            ¨ an Unrestricted Definitive Note,

in accordance with the terms of the Indenture.

B-4

EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association 

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com

Attention: Linda A. McConkey, Vice President

Re: 7.750% Senior Notes due 2031

(CUSIP [      ])

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:

1.             Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a)  ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(b)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

C-1

(c)  ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(d)  ¨    Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

2.             Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)  ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

(b)  ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, ¨ IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated:

C-2

EXHIBIT D

FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

Ritchie Bros. Holdings Inc.

4000 Pine Lake Road

Lincoln, NE 68516

U.S. Bank Trust Company, National Association

Global Corporate Trust

555 SW Oak Street, PD-OR-P7TD

Portland, OR 97204

Email: linda.mcconkey@usbank.com

Attention: Linda A. McConkey, Vice President

Re: 7.750% Senior Notes due 2031

Reference is hereby made to the Indenture, dated as of March 15, 2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among Ritchie Bros. Holdings Inc., as issuer (the “Company”), Ritchie Bros. Auctioneers Incorporated, a Canadian federal corporation, as guarantor, and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $____________ aggregate principal amount of:

(a)  ¨ a beneficial interest in a Global Note, or

(b)  ¨ a Definitive Note,

we confirm that:

1.            We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).

2.            We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.

D-1

3.            We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

4.            We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

5.            We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

[Insert Name of Accredited Investor]
By:
	Name:
	Title:

Dated:

D-2

EXHIBIT E

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

Supplemental Indenture (this “Supplemental Indenture”), dated as of ________________, among __________________ (the “Guaranteeing Entity”), Ritchie Bros. Holdings Inc., a Washington corporation (the “Company”), and U.S. Bank Trust Company, National Association, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of March 15, 2023, providing for the issuance of 7.750% Senior Notes due 2031 (the “Notes”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth therein (the “Note Guarantee”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Entity and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1.            Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2.            Agreement to Guarantee. The Guaranteeing Entity hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture including but not limited to Article 10 thereof.

3.            No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities Laws.

4.            NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

5.            WAIVER OF TRIAL BY JURY. THE COMPANY, THE GUARANTEEING ENTITY AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.

E-1

6.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

7.            Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

8.            The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity and the Company.

E-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated:,

[Guaranteeing Entity]
By:
	Name:
	Title:
Ritchie Bros. Holdings Inc.
By:
	Name:
	Title:

E-3

U.S. Bank Trust Company, National Association, as Trustee
By:
	Name:
	Title:

E-4

EX-99.1

 

Exhibit 99.1

 

Execution Version

 

 

ESCROW AND SECURITY AGREEMENT

 

among

 

RITCHIE BROS. HOLDINGS INC.,

 

U.S. Bank TRUST COMPANY, National Association,

 

as Escrow Agent,

 

and

 

U.S. Bank TRUST COMPANY, National Association,

 

as Trustee

 

Dated as of March 15, 2023

 

 

 

 

 

ESCROW AND SECURITY AGREEMENT (this “Agreement”) made this 15th day of March, 2023, by and among Ritchie Bros. Holdings Inc., a Washington corporation (the “Grantor”), U.S. Bank TRUST COMPANY, National Association, a national banking association, in its capacities as a “securities intermediary” as defined in Section 8-102 of the UCC (as defined herein), a “bank” as defined in Section 9-102 of the UCC and escrow agent (collectively, in such capacities, the “Escrow Agent”), and U.S. Bank TRUST COMPANY, National Association (“US Bank”), a national banking association, in its capacity as trustee under the Indenture (as defined herein) (the “Trustee”). All references to “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.

 

This Agreement is being entered into in connection with the purchase agreement, dated as of March 1, 2023 (the “Purchase Agreement”), among the Grantor, Ritchie Bros. Auctioneers Incorporated, a company organized under the laws of Canada (“RBA”), and Goldman Sachs & Co. LLC, as representative of the several initial purchasers named therein (the “Initial Purchasers”), relating to the sale by the Grantor to the Initial Purchasers of (i) $550,000,000 aggregate principal amount of the Grantor’s 6.750% Senior Secured Notes due 2028 (the “Notes”), to be issued under the Indenture, dated as of March 15, 2023 (the “Indenture”), between the Grantor, RBA, as guarantor, the Trustee and US Bank, as collateral agent, and (ii) $800,000,000 aggregate principal amount of the Grantor’s 7.750% Senior Notes due 2031, to be issued under the Indenture, dated as of March 15, 2023, among the Grantor, RBA, as guarantor, and US Bank, as trustee.

 

Capitalized terms, which are used but not defined herein, have the respective meanings specified in the Indenture. Pursuant to the Purchase Agreement and the Offering Circular of the Grantor, dated as of March 1, 2023 (the “Offering Circular”), the Grantor offered (the “Offering”) an aggregate principal amount of the Notes set forth above. The Notes will be issued at an original offering price of 100% of their face value.

 

Pursuant to the “Use of Proceeds” section of the Offering Circular, the Grantor intends to use the proceeds from the Offering, together with proceeds from RBA’s term loan A facility and cash from RBA’s balance sheet, to fund the cash portion of the consideration payable in the proposed merger with IAA, Inc. (“IAA,” and such transaction, the “Mergers”), refinance IAA’s existing indebtedness, repay or refinance all of RBA’s indebtedness, including RBA’s existing 5.375% Senior Notes due 2025, pay a one-time, special cash dividend to RBA’s shareholders¹ and to pay related fees and expenses.

 

 

¹ Special dividend of $1.08 per share would be payable contingent upon closing of the Mergers to RBA shareholders of record as of a pre-closing record date to be determined with consent of the TSX.

 

 

 

 

The Grantor, the Trustee and the Escrow Agent hereby agree that, in consideration of the mutual promises and covenants contained herein, the Escrow Agent shall hold in escrow and shall distribute Escrowed Property (as defined herein) in accordance with and subject to the following instructions and terms and conditions:

 

1. Appointment of Escrow Agent

 

The Grantor and the Trustee hereby appoint U.S. Bank Trust Company, National Association as the Escrow Agent hereunder in accordance with the terms and conditions set forth herein, and U.S. Bank Trust Company, National Association hereby accepts such appointment.

 

2. Escrowed Property

 

(a)           The Grantor shall deposit with the Escrow Agent funds for the Escrow Account (as defined below) as follows:

 

(i)            $550,000,000.00, representing the original offering price of the Notes, which amount the Grantor shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes;

 

(ii)           $10,828,125.00, representing interest that shall accrue on the Notes from March 15, 2023 (the “Issue Date”) up to and including June 30, 2023, which amount the Grantor shall have, or shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; and

 

(iii)          $3,093,750.00, representing interest that shall accrue on the Notes for each month following June 30, 2023, which amount the Grantor shall deposit, or shall cause to be, deposited with the Escrow Agent in cash by wire transfer in immediately available funds on the date that is five (5) Business Days prior to the last day of each month beginning on June 30, 2023, and ending on August 31, 2023 (in each case, unless the Escrow Release has occurred) (any deposits made pursuant to this clause (iii), “Additional Deposits”).

 

As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate amount deposited with the Escrow Agent on the date hereof will be $560,828,125.00 (the “Initial Deposit” and, together with any Additional Deposits, the “Deposits”), which amount the Grantor has determined is sufficient to redeem in cash the Notes, in whole but not in part, in an amount equal to 100% of the original offering price of the Notes plus accrued and unpaid interest from the Issue Date to, but excluding, June 30, 2023.

 

(b)           (i) The Escrow Agent shall accept the Deposits and shall deposit such funds and the proceeds thereof in a separate identifiable account bearing the account number 254696000 with account name “Ritchie Bros Hldg 6.75% Nts due 2028,” established at the Escrow Agent (the “Escrow Account”) for disbursement in accordance with the provisions hereof. The Escrow Account shall be under the control (within the meaning of Section 8-106, 9-106 and 9-104 of the UCC) of the Trustee and, notwithstanding any other provisions of this Agreement, the Escrow Agent shall comply with all entitlement orders and instructions given by the Trustee with respect to the Escrow Account or other Escrowed Property, including, without limitation, instructions directing disposition of the funds in the Escrow Account, without further consent of the Grantor or any other person. The Trustee shall only be obligated to give instructions at the written direction of Holders of a majority of the aggregate principal amount of the Notes outstanding. Notwithstanding anything to the contrary contained herein, if at any time the Escrow Agent receives conflicting orders or instructions from the Trustee or the Grantor, the Escrow Agent shall comply with such entitlement order or instruction of the Trustee without further consent by the Grantor or any other person.

 

  -2-  

 

 

(ii)            Each party hereto hereby confirms that the arrangements established under this Section 1(b) constitute “control” of the Escrow Account. The Escrow Agent and the Grantor have not and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions with respect to any Escrow Account as set forth in this Section 1(b).

 

(iii)           The Escrow Agent hereby agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein, except to the extent that any fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent hereunder are not promptly paid when due, Escrow Agent may reimburse itself therefor from the Escrowed Property and may sell, convey or otherwise dispose of any Escrowed Property for such purpose.

 

(iv)           It is the intention of the parties hereto that this Agreement create a true escrow, and the Grantor has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances specified in Section 4 hereof. If, notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall be characterized as an arrangement for security (and not a true escrow), then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, as security for the due and punctual payment of the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, the Grantor hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders of the Notes, a continuing first-priority security interest in, and a lien on, all of the Grantor’s right, title and interest in and to the Escrow Account and the Escrowed Property credited thereto and all the proceeds thereof, whether now owned or existing or hereafter acquired or arising (collectively, the “Collateral”).

 

(v)            The Grantor agrees to take all steps necessary in connection with the perfection of the Trustee’s security interest in the Escrowed Property and, without limiting the generality of the foregoing, the Grantor shall prepare and file one or more UCC financing statements in such filing offices and containing such descriptions of collateral as are reasonably necessary or advisable in order to perfect the security interest granted herein. Without limiting the Grantor’s obligations in the preceding sentence, the Grantor also authorizes Trustee to prepare and file such financing statements. In no event whatsoever, shall either the Trustee or the Escrow Agent have any responsibility for preparing or filing any financing or continuation statements, nor shall either have any responsibility for recording any documents or instruments in any public office at any time or times, or for otherwise perfecting or maintaining the perfection of any security interest referred to herein, nor for the validity, perfection, priority or enforceability of the Liens referred to herein.

 

  -3-  

 

 

(vi)           The Grantor represents and warrants that it was duly incorporated and is validly existing in its jurisdiction of formation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Grantor will not change its legal name or jurisdiction of organization without giving the Trustee 30 days’ prior written notice.

 

(vii)          Upon the release of any Escrowed Property pursuant to Section 4 hereof, the security interest of the Trustee for the benefit of the Holders of the Notes in such released Escrowed Property shall automatically terminate without any further action and such released Escrowed Property shall be delivered to the recipient free and clear of any and all liens, claims or encumbrances of any person, including, without limitation, the Escrow Agent, the Trustee and the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. At such time, the Trustee and the Escrow Agent shall execute such documents without recourse, representation or warranty of any kind as the Grantor shall reasonably request and provide to evidence or confirm the termination of such security interest. The Initial Deposit, any Additional Deposits (following such deposit(s)), the Escrow Account and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all interest, dividends and other distributions and payments on any of the foregoing (collectively, the “Distributions”) received by the Escrow Agent, less any property and/or funds distributed or paid in accordance with this Agreement, are collectively referred to herein as “Escrowed Property.”

 

3. Investment of Escrowed Property

 

Upon written directions from the Grantor, the Escrow Agent shall invest or reinvest the Escrowed Property, without distinction between principal and income, in Escrow Eligible Investments selected by the Grantor. “Escrow Eligible Investments” shall mean (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include certificates of deposit, bankers’ acceptances or interest-bearing time deposits that are made with the Trustee or with any member of the Federal Deposit Insurance Corporation, provided that such investments are: (A) fully insured by the Federal Deposit Insurance Corporation; (B) made with any bank (including the Trustee or any Affiliate thereof) having undivided capital and surplus of at least $100.0 million, the debt obligations (or in the case of the principal bank holding company, debt obligations of the bank holding company) of which are rated in the top 2 tier categories by at least one of the recognized rating agencies at the time of purchase; or (C) continuously secured as to principal, to the extent not insured by the Federal Deposit Insurance Corporation, by items listed in clause (A) or (B) above, or other marketable securities eligible as security for the deposit of trust funds under applicable regulations of the Comptroller of the Currency of the United States of America, having a market value (exclusive of accrued interest) not less than the amount of such deposit. In no event will the Escrow Agent or Trustee be responsible for making any such investment selection. In the absence of written direction from the Grantor as to a particular investment to be made, the funds will remain uninvested.

 

  -4-  

 

 

The Escrow Agent shall credit all such investments to the Escrow Account and hereby agrees to treat any such investment as a financial asset within the meaning of Section 8-102(a)(9) of the UCC.

 

The Escrow Agent shall have no liability for any loss arising from or related to any such investment other than in accordance with Section 8 below. The Escrow Agent is hereby authorized to execute purchases and sales of investments permitted by this Section 3 through the facilities of its own trading or capital markets operations or those of any affiliated entity.

 

4. Distribution of Escrowed Property

 

The Escrow Agent is directed to hold and distribute the Escrowed Property in the following manner:

 

(a)            The Escrow Agent will only release the Escrowed Property in the cases specifically provided for in this Section 4.

 

(b)            The Escrow Agent will promptly arrange for the release (the “Escrow Release”) of the Escrowed Property (the “Release Amount”) to the Grantor upon receipt of an Officer’s Certificate evidencing the satisfaction of the following conditions (the form of which is attached as Exhibit A hereto) from the Grantor to the Trustee and the Escrow Agent, which certificate shall confirm that the following conditions have been met:

 

(i)             all conditions precedent to the Mergers have been satisfied or waived in accordance with the Merger Agreement (defined below) on substantially the same terms as described in the Offering Circular;

 

(ii)            substantially concurrently with the Escrow Release, the additional entities listed on Schedule IV to the Purchase Agreement (the “Additional Guarantors”) will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior secured basis, jointly and severally, all of the obligations of the Grantor under the Indenture effective as of and from the consummation of the Mergers;

 

(iii)           substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers;

 

(iv)           substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Indenture in connection with the Supplemental Indenture;

 

  -5-  

 

 

(v)            substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in form and substance reasonably satisfactory to the Initial Purchasers, addressed to the Initial Purchasers;

 

(vi)           substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers; and

 

(vii)          stating that all of the conditions precedent to the Escrow Release have been satisfied.

 

In addition, the wire instructions for the Release Amount are stated in Exhibit B to this Agreement.

 

(c)            If the conditions contained in clause (b) have not been satisfied on or before the Deadline (as defined below), the Escrow Agent will arrange for the release of all or a portion of the Escrowed Property equal to the Special Mandatory Redemption Price, as determined by the Grantor and provided to the Escrow Agent in an Officer’s Certificate, to the Trustee under the Indenture and the Escrow Agent for payment, on behalf of the Grantor, to Holders of the Notes to redeem the designated principal amount of the Notes in accordance with the escrow redemption provision contained in Section 3.09 of the Indenture. After the Deadline, upon the written request of the Grantor, the Escrow Agent will promptly arrange for the release of any amount of the Escrowed Property in excess of, or not otherwise required to be applied to, the Special Mandatory Redemption Price, if any, to the Grantor, as directed in written instructions from the Grantor.

 

The “Deadline” shall be (x) September 30, 2023 or (y) such earlier date as the Grantor shall notify the Trustee in writing that it will not pursue the consummation of the Mergers or that the Agreement and Plan of Merger and Reorganization, dated as of November 7, 2022, as amended by the amendment to the Merger Agreement, dated January 22, 2023, by and among RBA, the Grantor, Impala Merger Sub I, LLC, Impala Merger Sub II, LLC and IAA (as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date the Mergers are consummated, the “Merger Agreement”) has been terminated in accordance with its terms.

 

Neither the Escrow Agent nor the Trustee shall be responsible for calculating amounts to be disbursed hereunder, and each shall be entitled to conclusively rely on written instructions from the Grantor delivered in accordance with this Agreement, which instructions shall include wiring instructions, if not provided for herein; except where provided that such instruction may be delivered by Holders of a majority of the aggregate principal amount of the Notes outstanding pursuant to Section 1(b) hereof.

 

(d)            If, in accordance with Section 3.09 under the Indenture, the Escrow Agent receives a written notice from the Trustee that:

 

(i)             the principal amount of and accrued and unpaid interest on the Notes has become immediately due and payable pursuant to Article 6 of the Indenture (an “Acceleration Event”), or

 

(ii)            the Trustee has been notified that the Grantor is redeeming or repurchasing all of the Notes pursuant to the terms of the Indenture (a “Redemption Event”),

 

  -6-  

 

 

then the Escrow Agent will liquidate all Escrowed Property then held by it, and the Escrow Agent will promptly arrange for the release to the Trustee for payment, on behalf of the Grantor, to the Holders of the Notes the amount of Escrowed Property sufficient to pay such accelerated, redeemed or repurchased principal amount, as applicable, and interest, if any, thereon (such amount to be determined by the Grantor) (A) in the case of an Acceleration Event, as promptly as practical, and in no event later than give (5) Business Days, after receipt of such written notice from the Trustee or (B) in the case of a Redemption Event, within five (5) Business Days after receipt of such written notice from the Trustee. In the event of a release under this clause (d) in the case of an Acceleration Event, the Escrowed Property will be applied, first, to amounts owing to the Escrow Agent and Trustee in respect of fees and expenses of the Escrow Agent and Trustee, second, to payment, on behalf of the Grantor, to the Holders of the Notes to the full extent of all Obligations under the Indenture and the Notes and, third, the Escrow Agent will release all remaining Escrowed Property, if any, as directed in written instructions from the Grantor.

 

(e)            The Grantor will pay or cause to be paid the principal of, premium on, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Grantor or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Grantor in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

 

5. Addresses

 

Notices, instructions and other communications shall be sent to the Escrow Agent and the Trustee at the Corporate Trust Office of the Trustee; and to Grantor as follows:

 

c/o Ritchie Bros. Auctioneers Incorporated
9500 Glenlyon Parkway

Burnaby, British Columbia, Canada V5J0C6
Attention: Eric Jacobs and Legal Affairs
Facsimile No.: (778) 331-4629

E-mail: ejacobs@rbauction.com and legal@ritchiebros.com

 

with a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California 94301
Attention: Gregg Noel
E-mail: Gregg.Noel@skadden.com
Facsimile No.: (213) 621-5234

 

The Escrow Agent and the Trustee agree to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods (including pdf files). If the party elects to give the Escrow Agent or the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Escrow Agent or the Trustee in its discretion elects to act upon such instructions, the Escrow Agent or the Trustee’s understanding, as applicable, of such instructions shall be deemed controlling. Neither the Escrow Agent nor the Trustee shall be liable for any losses, costs or expenses arising directly or indirectly from its good faith reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Escrow Agent or Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

  -7-  

 

 

6. Termination; Distribution of Escrowed Property

 

Upon the release of all the Escrowed Property in accordance with Section 4 hereof, this Agreement will automatically terminate without any further action, except that the provisions expressly intended to survive shall so survive.

 

Upon the release of any Escrowed Property to the Grantor pursuant to Section 4(b) or (c) hereof, such Escrowed Property will be delivered to the recipient, free and clear of any and all interests of the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. Upon any release of any Escrowed Property to the Paying Agent for distribution to the Holders of the Notes pursuant to Section 4(c) or (d), the Escrowed Property so released will be delivered to the recipients free and clear of any and all claim or interest of the Grantor.

 

7. Compensation

 

(a)            The Grantor shall pay all activity charges and fees for compensation as separately agreed between the Grantor and the Escrow Agent.

 

(b)            The Grantor shall be responsible for and shall reimburse the Escrow Agent upon demand for all reasonable documented and out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent and its agents and legal counsel in connection with this Agreement.

 

8. Terms and Conditions

 

(a)            The duties, responsibilities and obligations of the Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied. The Escrow Agent shall not be subject to, nor required to comply with, any other agreement to which the Grantor is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Grantor or any entity acting on its behalf. The Escrow Agent shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.

 

(b)            This Agreement is for the exclusive benefit of the parties hereto and their respective successors, and shall not be deemed to give, either express or implied, any legal or equitable right, remedy, or claim to any other entity or person whatsoever.

 

(c)            If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects Escrowed Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of Escrowed Property), the Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.

 

  -8-  

 

 

(d)            (i) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (A) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Grantor or any entity acting on behalf of the Grantor, (B) for any indirect, consequential, punitive or special damages, (C) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians, so long as the same are selected with due care, or (D) for an amount in excess of the value of the Escrowed Property.

 

(ii)            The Escrow Agent may consult with legal counsel at the expense of the Grantor as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.

 

(iii)           The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to strikes, work stoppages, accidents, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes, interruptions, loss or malfunctions of utilities, communications or computer services, and hacking, cyber-attacks, or other use or infiltration of the Escrow Agent’s technological infrastructure exceeding authorized access, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).

 

(iv)           The Escrow Agent shall not be responsible for losses as a result of any liquidation of any investment prior to its maturity (in accordance with instruction provided in accordance with this Agreement).

 

(e)            The Escrow Agent shall provide to the Grantor monthly statements identifying transactions, transfers or holdings of Escrowed Property and each such statement shall be deemed to be correct and final, absent manifest error, upon receipt thereof by the Grantor unless the Escrow Agent is notified in writing to the contrary within thirty (30) business days of the date of such statement.

 

(f)             The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons (other than the Escrow Agent) executing or delivering or purporting to execute or deliver any such document, security or endorsement.

 

  -9-  

 

 

(g)            Notices, instructions or other communications shall be in writing and shall be given to the address set forth in the “Addresses” provision herein (or to such other address as may be substituted therefor by written notification to the Escrow Agent or the Grantor). Notices to the Escrow Agent shall be deemed to be given when actually received by the Escrow Agent. The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the Grantor or by a person or persons authorized by the Grantor. Whenever under the terms hereof the time for giving a notice or performing an act falls upon a Saturday, Sunday, or banking holiday, such time shall be extended to the next day on which the Escrow Agent is open for business. Attached as Schedule A hereto is a list of those persons initially entitled to give notices, instructions and other communications to the Escrow Agent on behalf of the Grantor. Notwithstanding anything to the contrary herein, Schedule A may be amended from time to time by written notice from the Grantor to the Escrow Agent.

 

(h)            The Grantor shall be liable for and shall reimburse and indemnify the Escrow Agent and hold the Escrow Agent harmless from and against any and all claims, losses, liabilities, costs, damages or expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising from or in connection with or related to this Agreement or being the Escrow Agent hereunder (including but not limited to Losses incurred by the Escrow Agent in connection with its successful defense of any claim of gross negligence or willful misconduct on its part), provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful misconduct or bad faith.

 

(i)             (i) The Grantor may, with the consent of the Trustee, remove the Escrow Agent at any time by giving to the Escrow Agent thirty (30) calendar days’ prior notice in writing signed by the Grantor. The Escrow Agent may resign at any time by giving to the Grantor thirty (30) calendar days’ prior written notice thereof. Any such removal or resignation of the Escrow Agent shall not become effective until appointment of a successor Escrow Agent as provided below.

 

(ii)            The Grantor shall appoint a successor Escrow Agent acceptable to the Trustee prior to the end of the notice period provided in clause (i) of this subsection. The Grantor shall cause any successor Escrow Agent to assume the obligations of the Escrow Agent hereunder or to enter into such other escrow agreement as may be acceptable to the Trustee. If a successor Escrow Agent has not accepted such appointment by the end of such notice period, the Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor Escrow Agent or for other appropriate relief. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Escrow Agent in connection with such proceeding shall be paid by the Grantor.

 

(iii)           Upon receipt of the identity of the successor Escrow Agent, the Escrow Agent shall deliver the Escrowed Property then held hereunder to the successor Escrow Agent, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent, or may hold such Escrowed Property (or any portion thereof), pending distribution, until all such fees, costs and expenses or other obligations are paid.

 

(iv)           Upon delivery of the Escrowed Property to the successor Escrow Agent, the Escrow Agent shall have no further duties, responsibilities or obligations hereunder.

 

(j)             (i) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than retaining possession of the Escrowed Property, unless the Escrow Agent receives written instructions, signed by the Grantor, which eliminates such ambiguity or uncertainty.

 

  -10-  

 

 

(ii)            Subject to the last sentence of Section 2(b)(i), in the event of any dispute between or conflicting claims by or among the Grantor and/or any other person or entity (other than the Trustee) with respect to any Escrowed Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrowed Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Grantor for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (A) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (B) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all Losses which it may incur by reason of so acting. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by the Grantor.

 

(k)            This Agreement shall be interpreted, construed, enforced and administered in accordance with the internal substantive laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. For purposes of the UCC and the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Convention”), the Escrow Agent’s jurisdiction (within the meaning of Section 8-110 and 9-304 of the UCC and article 4 of the hague convention) shall be the State of New York. The Grantor hereby submits to the personal jurisdiction of, and agrees that all proceedings relating hereto shall be brought in, courts located within the City and State of New York. THE GRANTOR HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUCH PROCEEDINGS. The Grantor waives personal service of process and consents to service of process by certified or registered mail, return receipt requested, directed to it at the address last specified for notices hereunder, and such service shall be deemed completed ten (10) calendar days after the same is so mailed.

 

(l)             Except as otherwise provided herein, this Agreement may be modified only by a written amendment signed by all the parties hereto, and no waiver of any provision hereof shall be effective unless expressed in a writing signed by the party to be charged. The parties hereto acknowledge that the Trustee’s and the Grantor’s rights to amend this agreement are subject to the terms of the Indenture.

 

  -11-  

 

 

(m)           The rights and remedies conferred upon the parties hereto shall be cumulative, and the exercise or waiver of any such right or remedy shall not preclude or inhibit the exercise of any additional rights or remedies. The waiver of any right or remedy hereunder shall not preclude the subsequent exercise of such right or remedy.

 

(n)            The Grantor and the Escrow Agent each hereby represents and warrants (i) that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation and (ii) that the execution, delivery and performance of this Agreement by it does not and will not violate any applicable law or regulation.

 

(o)            The Escrow Agent hereby represents and warrants that it is a “securities intermediary” (as defined in the UCC) with respect to the Escrow Account and that the Escrow Account is a “securities account” (as defined in the UCC).

 

(p)            The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision; and if any provision is held to be enforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect.

 

(q)            This Agreement shall constitute the entire agreement of the parties with respect to the subject matter and supersedes all prior oral or written agreements in regard thereto. In the event of any conflict between this Agreement and any other agreement with respect to the Escrow Account, the provisions of this Agreement shall control.

 

(r)             The obligations of the Grantor under Sections 7, 8(h), 8(k) and 8(m) hereof shall survive termination of this Agreement and/or the resignation or removal of the Escrow Agent.

 

(s)            The Escrow Agent consents to the use of its name in the Preliminary Offering Circular dated February 28, 2023, the Offering Circular, the Purchase Agreement and the Indenture, as the same may be amended from time to time.

 

(t)             The headings contained in this Agreement are for convenience of reference only and shall have no effect on the interpretation or operation hereof.

 

(u)            This Agreement may be executed by each of the parties hereto in any number of counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or PDF transmission, or other electronic submission, including electronic signatures, shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu of the original Agreement and signature pages for all purposes.

 

  -12-  

 

 

(v)            The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Grantor shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent for any amounts that it is obligated to pay in the way of such taxes, provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for taxes caused by its gross negligence, willful misconduct or bad faith. Each party hereto shall provide the Escrow Agent with a properly completed and duly executed Internal Revenue Service Form W-9 or W-8, as applicable, and such other forms and documents that the Escrow Agent may reasonably request. The parties acknowledge that if such documentation is not timely provided to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of 1986, as amended, and the treasury regulations promulgated thereunder to withhold a portion of any payment made from the Escrow Account. To the extent amounts are so withheld by the Escrow Agent, such withheld amounts shall be timely remitted to the applicable Tax authority and will be treated for all purposes of this Agreement as having been paid to the person(s) in respect of which such withholding was made. For purposes of Internal Revenue Service Forms 1099, which the Escrow Agent shall prepare and timely file, all reportable income shall be reported to the Internal Revenue Service as being allocable to the Grantor. It is understood that the Escrow Agent shall be responsible for reporting only with respect to income earned on investment of funds which are a part of the Escrowed Property and is not responsible for any other reporting.

 

(w)           In the performance of its obligations herein, the Trustee shall have all of the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

 

  -13-  

 

 

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a duly authorized officer as of the day and year first written above.

RITCHIE BROS. HOLDINGS INC., as Grantor
By:	/s/ Darren Watt
	Name: Darren Watt
	Title: Director
U.S. Bank TRUST COMPANY, National Association, as Escrow Agent
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President
Acknowledged, with respect to the entirety of this Agreement and Agreed with respect to Section 1 hereof:
U.S. Bank TRUST COMPANY, National Association, as Trustee
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President

  S-1  

 

 

SCHEDULE A

 

The following persons are entitled to give notices, instructions and other communications to the Escrow Agent on behalf of the Grantor:

 

Name	Title	Signature
Jake Lawson	Director and President	/s/ Jake Lawson
Darren Watt	Director	/s/ Darren Watt

 

  Schedule A-1  

 

 

EXHIBIT A

 

[Form of] Release Officer’s Certificate

 

of

 

Ritchie Bros. Holdings Inc.

 

This Release Officer’s Certificate is being delivered pursuant to Section 4(b) of the Escrow and Security Agreement, dated as of March 15, 2023 (the “Escrow and Security Agreement”), among Ritchie Bros. Holdings Inc., a Washington corporation (the “Grantor”), U.S. Bank Trust Company, National Association, a national banking association, as the Escrow Agent, and U.S. Bank Trust Company, National Association, a national banking association, as Trustee. Capitalized terms used but not defined herein have the respective meanings specified in the Escrow and Security Agreement. The Grantor hereby certifies through the undersigned officer that:

 

(i)            All conditions precedent to the Mergers have been satisfied or waived in accordance with the Merger Agreement on substantially the same terms as described in the Offering Circular.

 

(ii)            Substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior basis, jointly and severally, the obligations of the Grantor under the Indenture effective as of and from the consummation of the Mergers.

 

(iii)            Substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers.

 

(iv)            Substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Indenture in connection with the Supplemental Indenture.

 

(v)            Substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in form and substance reasonably satisfactory to the Initial Purchasers.

 

(vi)            Substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers.

 

(vii)            All of the conditions precedent to the Escrow Release have been satisfied.

 

 

 

 

IN WITNESS WHEREOF, the Grantor, through the undersigned officer, has signed this Certificate ___ day of ______________, 202_.

	RITCHIE BROS. HOLDINGS INC.
	By:
		Name:
		Title:

 

Signature page to Release Officer’s Certificate

 

 

 

 

EXHIBIT B

 

Wire Instructions

 

[Attached]

 

 

EX-99.2

 

Exhibit 99.2

 

Execution Version

 

 

ESCROW AND SECURITY AGREEMENT

 

among

 

RITCHIE BROS. HOLDINGS INC.,

 

U.S. Bank TRUST COMPANY, National Association,

 

as Escrow Agent,

 

and

 

U.S. Bank TRUST COMPANY, National Association,

 

as Trustee

 

Dated as of March 15, 2023

 

 

 

 

 

ESCROW AND SECURITY AGREEMENT (this “Agreement”) made this 15th day of March, 2023, by and among Ritchie Bros. Holdings Inc., a Washington corporation (the “Grantor”), U.S. Bank TRUST COMPANY, National Association, a national banking association, in its capacities as a “securities intermediary” as defined in Section 8-102 of the UCC (as defined herein), a “bank” as defined in Section 9-102 of the UCC and escrow agent (collectively, in such capacities, the “Escrow Agent”), and U.S. Bank TRUST COMPANY, National Association (“US Bank”), a national banking association, in its capacity as trustee under the Indenture (as defined herein) (the “Trustee”). All references to “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.

 

This Agreement is being entered into in connection with the purchase agreement, dated as of March 1, 2023 (the “Purchase Agreement”), among the Grantor, Ritchie Bros. Auctioneers Incorporated, a company organized under the laws of Canada (“RBA”), and Goldman Sachs & Co. LLC, as representative of the several initial purchasers named therein (the “Initial Purchasers”), relating to the sale by the Grantor to the Initial Purchasers of (i) $550,000,000 aggregate principal amount of the Grantor’s 6.750% Senior Secured Notes due 2028, to be issued under the Indenture, dated as of March 15, 2023, between the Grantor, RBA, as guarantor, US Bank, as trustee, and US Bank, as collateral agent, and (ii) $800,000,000 aggregate principal amount of the Grantor’s 7.750% Senior Notes due 2031 (the “Notes”), to be issued under the Indenture, dated as of March 15, 2023 (the “Indenture”), among the Grantor, RBA, as guarantor, and the Trustee.

 

Capitalized terms, which are used but not defined herein, have the respective meanings specified in the Indenture. Pursuant to the Purchase Agreement and the Offering Circular of the Grantor, dated as of March 1, 2023 (the “Offering Circular”), the Grantor offered (the “Offering”) an aggregate principal amount of the Notes set forth above. The Notes will be issued at an original offering price of 100% of their face value.

 

Pursuant to the “Use of Proceeds” section of the Offering Circular, the Grantor intends to use the proceeds from the Offering, together with proceeds from RBA’s term loan A facility and cash from RBA’s balance sheet, to fund the cash portion of the consideration payable in the proposed merger with IAA, Inc. (“IAA,” and such transaction, the “Mergers”), refinance IAA’s existing indebtedness, repay or refinance all of RBA’s indebtedness, including RBA’s existing 5.375% Senior Notes due 2025, pay a one-time, special cash dividend to RBA’s shareholders¹ and to pay related fees and expenses.

 

 

¹ Special dividend of $1.08 per share would be payable contingent upon closing of the Mergers to RBA shareholders of record as of a pre-closing record date to be determined with consent of the TSX.

 

 

 

 

The Grantor, the Trustee and the Escrow Agent hereby agree that, in consideration of the mutual promises and covenants contained herein, the Escrow Agent shall hold in escrow and shall distribute Escrowed Property (as defined herein) in accordance with and subject to the following instructions and terms and conditions:

 

1. Appointment of Escrow Agent

 

The Grantor and the Trustee hereby appoint U.S. Bank Trust Company, National Association as the Escrow Agent hereunder in accordance with the terms and conditions set forth herein, and U.S. Bank Trust Company, National Association hereby accepts such appointment.

 

2. Escrowed Property

 

(a)           The Grantor shall deposit with the Escrow Agent funds for the Escrow Account (as defined below) as follows:

 

(i)            $800,000,000.00, representing the original offering price of the Notes, which amount the Grantor shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes;

 

(ii)           $18,083,333.33, representing interest that shall accrue on the Notes from March 15, 2023 (the “Issue Date”) up to and including June 30, 2023, which amount the Grantor shall have, or shall deposit, or shall have caused to be deposited, with the Escrow Agent in cash by wire transfer in immediately available funds concurrently with the execution and delivery hereof and the issuance of the Notes; and

 

(iii)           $5,166,666.67, representing interest that shall accrue on the Notes for each month following June 30, 2023, which amount the Grantor shall deposit, or shall cause to be, deposited with the Escrow Agent in cash by wire transfer in immediately available funds on the date that is five (5) Business Days prior to the last day of each month beginning on June 30, 2023, and ending on August 31, 2023 (in each case, unless the Escrow Release has occurred) (any deposits made pursuant to this clause (iii), “Additional Deposits”).

 

As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate amount deposited with the Escrow Agent on the date hereof will be $818,083,333.33 (the “Initial Deposit” and, together with any Additional Deposits, the “Deposits”), which amount the Grantor has determined is sufficient to redeem in cash the Notes, in whole but not in part, in an amount equal to 100% of the original offering price of the Notes plus accrued and unpaid interest from the Issue Date to, but excluding, June 30, 2023.

 

(b)           (i) The Escrow Agent shall accept the Deposits and shall deposit such funds and the proceeds thereof in a separate identifiable account bearing the account number 269108000 with account name “Ritchie Bros Hldg 7.75% Nts due 2031,” established at the Escrow Agent (the “Escrow Account”) for disbursement in accordance with the provisions hereof. The Escrow Account shall be under the control (within the meaning of Section 8-106, 9-106 and 9-104 of the UCC) of the Trustee and, notwithstanding any other provisions of this Agreement, the Escrow Agent shall comply with all entitlement orders and instructions given by the Trustee with respect to the Escrow Account or other Escrowed Property, including, without limitation, instructions directing disposition of the funds in the Escrow Account, without further consent of the Grantor or any other person. The Trustee shall only be obligated to give instructions at the written direction of Holders of a majority of the aggregate principal amount of the Notes outstanding. Notwithstanding anything to the contrary contained herein, if at any time the Escrow Agent receives conflicting orders or instructions from the Trustee or the Grantor, the Escrow Agent shall comply with such entitlement order or instruction of the Trustee without further consent by the Grantor or any other person.

 

  -2-  

 

 

(ii)            Each party hereto hereby confirms that the arrangements established under this Section 1(b) constitute “control” of the Escrow Account. The Escrow Agent and the Grantor have not and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions with respect to any Escrow Account as set forth in this Section 1(b).

 

(iii)           The Escrow Agent hereby agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein, except to the extent that any fees, expenses or costs incurred by, or any obligations owed to, Escrow Agent hereunder are not promptly paid when due, Escrow Agent may reimburse itself therefor from the Escrowed Property and may sell, convey or otherwise dispose of any Escrowed Property for such purpose.

 

(iv)           It is the intention of the parties hereto that this Agreement create a true escrow, and the Grantor has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances specified in Section 4 hereof. If, notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall be characterized as an arrangement for security (and not a true escrow), then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, as security for the due and punctual payment of the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, the Grantor hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders of the Notes, a continuing first-priority security interest in, and a lien on, all of the Grantor’s right, title and interest in and to the Escrow Account and the Escrowed Property credited thereto and all the proceeds thereof, whether now owned or existing or hereafter acquired or arising (collectively, the “Collateral”).

 

(v)            The Grantor agrees to take all steps necessary in connection with the perfection of the Trustee’s security interest in the Escrowed Property and, without limiting the generality of the foregoing, the Grantor shall prepare and file one or more UCC financing statements in such filing offices and containing such descriptions of collateral as are reasonably necessary or advisable in order to perfect the security interest granted herein. Without limiting the Grantor’s obligations in the preceding sentence, the Grantor also authorizes Trustee to prepare and file such financing statements. In no event whatsoever, shall either the Trustee or the Escrow Agent have any responsibility for preparing or filing any financing or continuation statements, nor shall either have any responsibility for recording any documents or instruments in any public office at any time or times, or for otherwise perfecting or maintaining the perfection of any security interest referred to herein, nor for the validity, perfection, priority or enforceability of the Liens referred to herein.

 

  -3-  

 

 

(vi)            The Grantor represents and warrants that it was duly incorporated and is validly existing in its jurisdiction of formation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Grantor will not change its legal name or jurisdiction of organization without giving the Trustee 30 days’ prior written notice.

 

(vii)           Upon the release of any Escrowed Property pursuant to Section 4 hereof, the security interest of the Trustee for the benefit of the Holders of the Notes in such released Escrowed Property shall automatically terminate without any further action and such released Escrowed Property shall be delivered to the recipient free and clear of any and all liens, claims or encumbrances of any person, including, without limitation, the Escrow Agent, the Trustee and the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. At such time, the Trustee and the Escrow Agent shall execute such documents without recourse, representation or warranty of any kind as the Grantor shall reasonably request and provide to evidence or confirm the termination of such security interest. The Initial Deposit, any Additional Deposits (following such deposit(s)), the Escrow Account and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all interest, dividends and other distributions and payments on any of the foregoing (collectively, the “Distributions”) received by the Escrow Agent, less any property and/or funds distributed or paid in accordance with this Agreement, are collectively referred to herein as “Escrowed Property.”

 

3. Investment of Escrowed Property

 

Upon written directions from the Grantor, the Escrow Agent shall invest or reinvest the Escrowed Property, without distinction between principal and income, in Escrow Eligible Investments selected by the Grantor. “Escrow Eligible Investments” shall mean (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include certificates of deposit, bankers’ acceptances or interest-bearing time deposits that are made with the Trustee or with any member of the Federal Deposit Insurance Corporation, provided that such investments are: (A) fully insured by the Federal Deposit Insurance Corporation; (B) made with any bank (including the Trustee or any Affiliate thereof) having undivided capital and surplus of at least $100.0 million, the debt obligations (or in the case of the principal bank holding company, debt obligations of the bank holding company) of which are rated in the top 2 tier categories by at least one of the recognized rating agencies at the time of purchase; or (C) continuously secured as to principal, to the extent not insured by the Federal Deposit Insurance Corporation, by items listed in clause (A) or (B) above, or other marketable securities eligible as security for the deposit of trust funds under applicable regulations of the Comptroller of the Currency of the United States of America, having a market value (exclusive of accrued interest) not less than the amount of such deposit. In no event will the Escrow Agent or Trustee be responsible for making any such investment selection. In the absence of written direction from the Grantor as to a particular investment to be made, the funds will remain uninvested.

 

  -4-  

 

 

The Escrow Agent shall credit all such investments to the Escrow Account and hereby agrees to treat any such investment as a financial asset within the meaning of Section 8-102(a)(9) of the UCC.

 

The Escrow Agent shall have no liability for any loss arising from or related to any such investment other than in accordance with Section 8 below. The Escrow Agent is hereby authorized to execute purchases and sales of investments permitted by this Section 3 through the facilities of its own trading or capital markets operations or those of any affiliated entity.

 

4. Distribution of Escrowed Property

 

The Escrow Agent is directed to hold and distribute the Escrowed Property in the following manner:

 

(a)            The Escrow Agent will only release the Escrowed Property in the cases specifically provided for in this Section 4.

 

(b)            The Escrow Agent will promptly arrange for the release (the “Escrow Release”) of the Escrowed Property (the “Release Amount”) to the Grantor upon receipt of an Officer’s Certificate evidencing the satisfaction of the following conditions (the form of which is attached as Exhibit A hereto) from the Grantor to the Trustee and the Escrow Agent, which certificate shall confirm that the following conditions have been met:

 

(i)             all conditions precedent to the Mergers have been satisfied or waived in accordance with the Merger Agreement (defined below) on substantially the same terms as described in the Offering Circular;

 

(ii)            substantially concurrently with the Escrow Release, the additional entities listed on Schedule IV to the Purchase Agreement (the “Additional Guarantors”) will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior basis, jointly and severally, all of the obligations of the Grantor under the Indenture effective as of and from the consummation of the Mergers;

 

(iii)           substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers;

 

(iv)           substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Indenture in connection with the Supplemental Indenture;

 

  -5-  

 

 

(v)           substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in form and substance reasonably satisfactory to the Initial Purchasers, addressed to the Initial Purchasers;

 

(vi)           substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers; and

 

(vii)          stating that all of the conditions precedent to the Escrow Release have been satisfied.

 

In addition, the wire instructions for the Release Amount are stated in Exhibit B to this Agreement.

 

(c)            If the conditions contained in clause (b) have not been satisfied on or before the Deadline (as defined below), the Escrow Agent will arrange for the release of all or a portion of the Escrowed Property equal to the Special Mandatory Redemption Price, as determined by the Grantor and provided to the Escrow Agent in an Officer’s Certificate, to the Trustee under the Indenture and the Escrow Agent for payment, on behalf of the Grantor, to Holders of the Notes to redeem the designated principal amount of the Notes in accordance with the escrow redemption provision contained in Section 3.09 of the Indenture. After the Deadline, upon the written request of the Grantor, the Escrow Agent will promptly arrange for the release of any amount of the Escrowed Property in excess of, or not otherwise required to be applied to, the Special Mandatory Redemption Price, if any, to the Grantor, as directed in written instructions from the Grantor.

 

The “Deadline” shall be (x) September 30, 2023 or (y) such earlier date as the Grantor shall notify the Trustee in writing that it will not pursue the consummation of the Mergers or that the Agreement and Plan of Merger and Reorganization, dated as of November 7, 2022, as amended by the amendment to the Merger Agreement, dated January 22, 2023, by and among RBA, the Grantor, Impala Merger Sub I, LLC, Impala Merger Sub II, LLC and IAA (as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date the Mergers are consummated, the “Merger Agreement”) has been terminated in accordance with its terms.

 

Neither the Escrow Agent nor the Trustee shall be responsible for calculating amounts to be disbursed hereunder, and each shall be entitled to conclusively rely on written instructions from the Grantor delivered in accordance with this Agreement, which instructions shall include wiring instructions, if not provided for herein; except where provided that such instruction may be delivered by Holders of a majority of the aggregate principal amount of the Notes outstanding pursuant to Section 1(b) hereof.

 

(d)            If, in accordance with Section 3.09 under the Indenture, the Escrow Agent receives a written notice from the Trustee that:

 

(i)             the principal amount of and accrued and unpaid interest on the Notes has become immediately due and payable pursuant to Article 6 of the Indenture (an “Acceleration Event”), or

 

(ii)            the Trustee has been notified that the Grantor is redeeming or repurchasing all of the Notes pursuant to the terms of the Indenture (a “Redemption Event”),

 

  -6-  

 

 

then the Escrow Agent will liquidate all Escrowed Property then held by it, and the Escrow Agent will promptly arrange for the release to the Trustee for payment, on behalf of the Grantor, to the Holders of the Notes the amount of Escrowed Property sufficient to pay such accelerated, redeemed or repurchased principal amount, as applicable, and interest, if any, thereon (such amount to be determined by the Grantor) (A) in the case of an Acceleration Event, as promptly as practical, and in no event later than give (5) Business Days, after receipt of such written notice from the Trustee or (B) in the case of a Redemption Event, within five (5) Business Days after receipt of such written notice from the Trustee. In the event of a release under this clause (d) in the case of an Acceleration Event, the Escrowed Property will be applied, first, to amounts owing to the Escrow Agent and Trustee in respect of fees and expenses of the Escrow Agent and Trustee, second, to payment, on behalf of the Grantor, to the Holders of the Notes to the full extent of all Obligations under the Indenture and the Notes and, third, the Escrow Agent will release all remaining Escrowed Property, if any, as directed in written instructions from the Grantor.

 

(e)            The Grantor will pay or cause to be paid the principal of, premium on, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Grantor or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Grantor in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

 

5. Addresses

 

Notices, instructions and other communications shall be sent to the Escrow Agent and the Trustee at the Corporate Trust Office of the Trustee; and to Grantor as follows:

 

c/o Ritchie Bros. Auctioneers Incorporated
9500 Glenlyon Parkway

Burnaby, British Columbia, Canada V5J0C6
Attention: Eric Jacobs and Legal Affairs
Facsimile No.: (778) 331-4629

E-mail: ejacobs@rbauction.com and legal@ritchiebros.com

 

with a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California 94301
Attention: Gregg Noel
E-mail: Gregg.Noel@skadden.com
Facsimile No.: (213) 621-5234

 

The Escrow Agent and the Trustee agree to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods (including pdf files). If the party elects to give the Escrow Agent or the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Escrow Agent or the Trustee in its discretion elects to act upon such instructions, the Escrow Agent or the Trustee’s understanding, as applicable, of such instructions shall be deemed controlling. Neither the Escrow Agent nor the Trustee shall be liable for any losses, costs or expenses arising directly or indirectly from its good faith reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Escrow Agent or Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

  -7-  

 

 

6. Termination; Distribution of Escrowed Property

 

Upon the release of all the Escrowed Property in accordance with Section 4 hereof, this Agreement will automatically terminate without any further action, except that the provisions expressly intended to survive shall so survive.

 

Upon the release of any Escrowed Property to the Grantor pursuant to Section 4(b) or (c) hereof, such Escrowed Property will be delivered to the recipient, free and clear of any and all interests of the Holders of the Notes, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent. Upon any release of any Escrowed Property to the Paying Agent for distribution to the Holders of the Notes pursuant to Section 4(c) or (d), the Escrowed Property so released will be delivered to the recipients free and clear of any and all claim or interest of the Grantor.

 

7. Compensation

 

(a)            The Grantor shall pay all activity charges and fees for compensation as separately agreed between the Grantor and the Escrow Agent.

 

(b)            The Grantor shall be responsible for and shall reimburse the Escrow Agent upon demand for all reasonable documented and out-of-pocket expenses, disbursements and advances incurred or made by the Escrow Agent and its agents and legal counsel in connection with this Agreement.

 

8. Terms and Conditions

 

(a)            The duties, responsibilities and obligations of the Escrow Agent shall be limited to those expressly set forth herein and no duties, responsibilities or obligations shall be inferred or implied. The Escrow Agent shall not be subject to, nor required to comply with, any other agreement to which the Grantor is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Grantor or any entity acting on its behalf. The Escrow Agent shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.

 

(b)            This Agreement is for the exclusive benefit of the parties hereto and their respective successors, and shall not be deemed to give, either express or implied, any legal or equitable right, remedy, or claim to any other entity or person whatsoever.

 

(c)            If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects Escrowed Property (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of Escrowed Property), the Escrow Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.

 

  -8-  

 

 

(d)            (i) The Escrow Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Escrow Agent be liable (A) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document from the Grantor or any entity acting on behalf of the Grantor, (B) for any indirect, consequential, punitive or special damages, (C) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians, so long as the same are selected with due care, or (D) for an amount in excess of the value of the Escrowed Property.

 

(ii)            The Escrow Agent may consult with legal counsel at the expense of the Grantor as to any matter relating to this Agreement, and the Escrow Agent shall not incur any liability in acting in good faith in accordance with any advice from such counsel.

 

(iii)            The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to strikes, work stoppages, accidents, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes, interruptions, loss or malfunctions of utilities, communications or computer services, and hacking, cyber-attacks, or other use or infiltration of the Escrow Agent’s technological infrastructure exceeding authorized access, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).

 

(iv)            The Escrow Agent shall not be responsible for losses as a result of any liquidation of any investment prior to its maturity (in accordance with instruction provided in accordance with this Agreement).

 

(e)             The Escrow Agent shall provide to the Grantor monthly statements identifying transactions, transfers or holdings of Escrowed Property and each such statement shall be deemed to be correct and final, absent manifest error, upon receipt thereof by the Grantor unless the Escrow Agent is notified in writing to the contrary within thirty (30) business days of the date of such statement.

 

(f)             The Escrow Agent shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons (other than the Escrow Agent) executing or delivering or purporting to execute or deliver any such document, security or endorsement.

 

(g)            Notices, instructions or other communications shall be in writing and shall be given to the address set forth in the “Addresses” provision herein (or to such other address as may be substituted therefor by written notification to the Escrow Agent or the Grantor). Notices to the Escrow Agent shall be deemed to be given when actually received by the Escrow Agent. The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the Grantor or by a person or persons authorized by the Grantor. Whenever under the terms hereof the time for giving a notice or performing an act falls upon a Saturday, Sunday, or banking holiday, such time shall be extended to the next day on which the Escrow Agent is open for business. Attached as Schedule A hereto is a list of those persons initially entitled to give notices, instructions and other communications to the Escrow Agent on behalf of the Grantor. Notwithstanding anything to the contrary herein, Schedule A may be amended from time to time by written notice from the Grantor to the Escrow Agent.

 

  -9-  

 

 

(h)             The Grantor shall be liable for and shall reimburse and indemnify the Escrow Agent and hold the Escrow Agent harmless from and against any and all claims, losses, liabilities, costs, damages or expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising from or in connection with or related to this Agreement or being the Escrow Agent hereunder (including but not limited to Losses incurred by the Escrow Agent in connection with its successful defense of any claim of gross negligence or willful misconduct on its part), provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful misconduct or bad faith.

 

(i)             (i) The Grantor may, with the consent of the Trustee, remove the Escrow Agent at any time by giving to the Escrow Agent thirty (30) calendar days’ prior notice in writing signed by the Grantor. The Escrow Agent may resign at any time by giving to the Grantor thirty (30) calendar days’ prior written notice thereof. Any such removal or resignation of the Escrow Agent shall not become effective until appointment of a successor Escrow Agent as provided below.

 

(ii)             The Grantor shall appoint a successor Escrow Agent acceptable to the Trustee prior to the end of the notice period provided in clause (i) of this subsection. The Grantor shall cause any successor Escrow Agent to assume the obligations of the Escrow Agent hereunder or to enter into such other escrow agreement as may be acceptable to the Trustee. If a successor Escrow Agent has not accepted such appointment by the end of such notice period, the Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor Escrow Agent or for other appropriate relief. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Escrow Agent in connection with such proceeding shall be paid by the Grantor.

 

(iii)            Upon receipt of the identity of the successor Escrow Agent, the Escrow Agent shall deliver the Escrowed Property then held hereunder to the successor Escrow Agent, less Escrow Agent’s fees, costs and expenses or other obligations owed to Escrow Agent, or may hold such Escrowed Property (or any portion thereof), pending distribution, until all such fees, costs and expenses or other obligations are paid.

 

(iv)            Upon delivery of the Escrowed Property to the successor Escrow Agent, the Escrow Agent shall have no further duties, responsibilities or obligations hereunder.

 

(j)             (i) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any action other than retaining possession of the Escrowed Property, unless the Escrow Agent receives written instructions, signed by the Grantor, which eliminates such ambiguity or uncertainty.

 

  -10-  

 

 

(ii)            Subject to the last sentence of Section 2(b)(i), in the event of any dispute between or conflicting claims by or among the Grantor and/or any other person or entity (other than the Trustee) with respect to any Escrowed Property, the Escrow Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Escrowed Property so long as such dispute or conflict shall continue, and the Escrow Agent shall not be or become liable in any way to the Grantor for failure or refusal to comply with such conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until, in its sole discretion, either (A) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Escrow Agent or (B) the Escrow Agent shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all Losses which it may incur by reason of so acting. The Escrow Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by the Grantor.

 

(k)            This Agreement shall be interpreted, construed, enforced and administered in accordance with the internal substantive laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. For purposes of the UCC and the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Convention”), the Escrow Agent’s jurisdiction (within the meaning of Section 8-110 and 9-304 of the UCC and article 4 of the hague convention) shall be the State of New York. The Grantor hereby submits to the personal jurisdiction of, and agrees that all proceedings relating hereto shall be brought in, courts located within the City and State of New York. THE GRANTOR HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUCH PROCEEDINGS. The Grantor waives personal service of process and consents to service of process by certified or registered mail, return receipt requested, directed to it at the address last specified for notices hereunder, and such service shall be deemed completed ten (10) calendar days after the same is so mailed.

 

(l)             Except as otherwise provided herein, this Agreement may be modified only by a written amendment signed by all the parties hereto, and no waiver of any provision hereof shall be effective unless expressed in a writing signed by the party to be charged. The parties hereto acknowledge that the Trustee’s and the Grantor’s rights to amend this agreement are subject to the terms of the Indenture.

 

  -11-  

 

 

(m)            The rights and remedies conferred upon the parties hereto shall be cumulative, and the exercise or waiver of any such right or remedy shall not preclude or inhibit the exercise of any additional rights or remedies. The waiver of any right or remedy hereunder shall not preclude the subsequent exercise of such right or remedy.

 

(n)            The Grantor and the Escrow Agent each hereby represents and warrants (i) that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation and (ii) that the execution, delivery and performance of this Agreement by it does not and will not violate any applicable law or regulation.

 

(o)            The Escrow Agent hereby represents and warrants that it is a “securities intermediary” (as defined in the UCC) with respect to the Escrow Account and that the Escrow Account is a “securities account” (as defined in the UCC).

 

(p)            The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision; and if any provision is held to be enforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect.

 

(q)            This Agreement shall constitute the entire agreement of the parties with respect to the subject matter and supersedes all prior oral or written agreements in regard thereto. In the event of any conflict between this Agreement and any other agreement with respect to the Escrow Account, the provisions of this Agreement shall control.

 

(r)            The obligations of the Grantor under Sections 7, 8(h), 8(k) and 8(m) hereof shall survive termination of this Agreement and/or the resignation or removal of the Escrow Agent.

 

(s)            The Escrow Agent consents to the use of its name in the Preliminary Offering Circular dated February 28, 2023, the Offering Circular, the Purchase Agreement and the Indenture, as the same may be amended from time to time.

 

(t)             The headings contained in this Agreement are for convenience of reference only and shall have no effect on the interpretation or operation hereof.

 

(u)            This Agreement may be executed by each of the parties hereto in any number of counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or PDF transmission, or other electronic submission, including electronic signatures, shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu of the original Agreement and signature pages for all purposes.

 

  -12-  

 

 

(v)            The Escrow Agent does not have any interest in the Escrowed Property deposited hereunder but is serving as escrow holder only and having only possession thereof. The Grantor shall pay or reimburse the Escrow Agent upon request for any transfer taxes or other taxes relating to the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the Escrow Agent for any amounts that it is obligated to pay in the way of such taxes, provided, however, that nothing contained herein shall require the Escrow Agent to be indemnified for taxes caused by its gross negligence, willful misconduct or bad faith. Each party hereto shall provide the Escrow Agent with a properly completed and duly executed Internal Revenue Service Form W-9 or W-8, as applicable, and such other forms and documents that the Escrow Agent may reasonably request. The parties acknowledge that if such documentation is not timely provided to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of 1986, as amended, and the treasury regulations promulgated thereunder to withhold a portion of any payment made from the Escrow Account. To the extent amounts are so withheld by the Escrow Agent, such withheld amounts shall be timely remitted to the applicable Tax authority and will be treated for all purposes of this Agreement as having been paid to the person(s) in respect of which such withholding was made. For purposes of Internal Revenue Service Forms 1099, which the Escrow Agent shall prepare and timely file, all reportable income shall be reported to the Internal Revenue Service as being allocable to the Grantor. It is understood that the Escrow Agent shall be responsible for reporting only with respect to income earned on investment of funds which are a part of the Escrowed Property and is not responsible for any other reporting.

 

(w)            In the performance of its obligations herein, the Trustee shall have all of the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

 

  -13-  

 

 

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a duly authorized officer as of the day and year first written above.

 

RITCHIE BROS. HOLDINGS INC., as Grantor
By:	/s/ Darren Watt
	Name: Darren Watt
	Title: Director
U.S. Bank TRUST COMPANY, National Association, as Escrow Agent
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President
Acknowledged, with respect to the entirety of this Agreement and Agreed with respect to Section 1 hereof:
U.S. Bank TRUST COMPANY, National Association, as Trustee
By:	/s/ Linda A. McConkey
	Name: Linda A. McConkey
	Title: Vice President

 

  S-1  

 

 

SCHEDULE A

 

The following persons are entitled to give notices, instructions and other communications to the Escrow Agent on behalf of the Grantor:

 

Name	Title	Signature
Jake Lawson	Director and President	/s/ Jake Lawson
Darren Watt	Director	/s/ Darren Watt

 

  Schedule A-1  

 

 

EXHIBIT A

 

[Form of] Release Officer’s Certificate

 

of

 

Ritchie Bros. Holdings Inc.

 

This Release Officer’s Certificate is being delivered pursuant to Section 4(b) of the Escrow and Security Agreement, dated as of March 15, 2023 (the “Escrow and Security Agreement”), among Ritchie Bros. Holdings Inc., a Washington corporation (the “Grantor”), U.S. Bank Trust Company, National Association, a national banking association, as the Escrow Agent, and U.S. Bank Trust Company, National Association, a national banking association, as Trustee. Capitalized terms used but not defined herein have the respective meanings specified in the Escrow and Security Agreement. The Grantor hereby certifies through the undersigned officer that:

 

(i)            All conditions precedent to the Mergers have been satisfied or waived in accordance with the Merger Agreement on substantially the same terms as described in the Offering Circular.

 

(ii)            Substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a supplemental indenture to the Indenture (the “Supplemental Indenture”) pursuant to which the Additional Guarantors will fully and unconditionally guarantee, as to the payment of principal, premium, if any, and interest, on a senior basis, jointly and severally, the obligations of the Grantor under the Indenture effective as of and from the consummation of the Mergers.

 

(iii)            Substantially concurrently with the Escrow Release, the Additional Guarantors will have executed a joinder to the Purchase Agreement and will have delivered such joinder to the Initial Purchasers.

 

(iv)            Substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered any Opinion of Counsel and Officer’s Certificate that are required to be delivered pursuant to the terms of the Indenture in connection with the Supplemental Indenture.

 

(v)            Substantially concurrently with the Escrow Release, the Grantor and the Additional Guarantors will have delivered Opinions of Counsel in form and substance reasonably satisfactory to the Initial Purchasers.

 

(vi)            Substantially concurrently with the Escrow Release, the Initial Purchasers will have received customary secretary’s certificates from the Grantor and the Additional Guarantors in form and substance reasonably satisfactory to the Initial Purchasers.

 

(vii)            All of the conditions precedent to the Escrow Release have been satisfied.

 

 

 

 

IN WITNESS WHEREOF, the Grantor, through the undersigned officer, has signed this Certificate ___ day of ______________, 202_.

	RITCHIE BROS. HOLDINGS INC.
	By:
		Name:
		Title:

 

Signature page to Release Officer’s Certificate

 

 

 

 

EXHIBIT B

 

Wire Instructions

 

[Attached]

 

 

EX-99.3

Exhibit 99.3

  News Release

Ritchie Bros. Announces Closing of Senior Notes Offering to Partially Fund IAA Merger

VANCOUVER, BC – March 15, 2023 – Ritchie Bros. Auctioneers Incorporated (NYSE & TSX: RBA, “Ritchie Bros.,” the “Company,” “we,” “us” or “our”), today announced that its subsidiary, Ritchie Bros. Holdings Inc. (the “Issuer”), has closed an offering of (a) $550 million aggregate principal amount of 6.750% senior secured notes due March 15, 2028 (the “Secured Notes”) and (b) $800 million aggregate principal amount of 7.750% senior notes due March 15, 2031 (the “Unsecured Notes” and collectively with the Secured Notes, the “Notes”).

The Notes are the senior secured obligations of the Issuer, secured only by the amounts deposited in the applicable escrow account. Upon consummation of the Merger (as defined below), each series of Notes will be, jointly and severally, fully and unconditionally guaranteed, on a senior unsecured basis, in the case of the Unsecured Notes, and on a senior secured basis, in the case of the Secured Notes, by the Company and each of the Company’s subsidiaries (other than the Issuer) that is a borrower, or guarantees indebtedness, under the Company’s credit agreement or certain capital markets indebtedness, including the other series of Notes. The Secured Notes and the Unsecured Notes bear interest at a rate equal to 6.750% and 7.750% per year, respectively, payable semiannually in arrears on March 15 and September 15 of each year, beginning on September 15, 2023, and mature on March 15, 2028 and March 15, 2031, respectively.

Ritchie Bros. intends to use the net proceeds from the offering of the Notes, together with proceeds from its term loan A facility and cash from its balance sheet, to fund the cash portion of the consideration payable in the previously announced merger with IAA, Inc. and its subsidiaries (“IAA” and such transaction, the “Merger”), refinance IAA’s existing indebtedness, repay or refinance all of Ritchie Bros.’ indebtedness, including Ritchie Bros.’ existing 5.375% Senior Notes due 2025 (the “existing 2025 notes”), pay a one-time, special cash dividend to Ritchie Bros.’ shareholders¹ and pay related fees and expenses. This news release does not constitute a notice of redemption of the existing 2025 notes. The gross proceeds from the offering will be held in an escrow account pending the consummation of the Merger.

The Notes have been offered and sold only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A of the Securities Act of 1933, as amended (the “Securities Act”), and to non-U.S. persons outside the U.S. in reliance on Regulation S of the Securities Act. The Notes have not been and will not be registered under the Securities Act or any state securities laws and, unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Notes have not been and will not be qualified for sale to the public by prospectus under applicable Canadian securities laws and accordingly, any offer and sale of the securities in Canada has been and will be made on a basis which is exempt from the prospectus requirements of such securities laws.

This news release shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

About Ritchie Bros.

Established in 1958, Ritchie Bros. (NYSE and TSX: RBA) is a global asset management and disposition company, offering customers end-to-end solutions for buying and selling used heavy equipment, trucks and other assets. Operating in a number of sectors, including construction, transportation, agriculture, energy, mining, and forestry, the Company’s selling channels include: Ritchie Bros. Auctioneers, the world’s largest industrial auctioneer offering live auction events with online bidding; IronPlanet, an online marketplace with weekly featured auctions and providing the exclusive IronClad Assurance® equipment condition certification; Marketplace-E, a controlled marketplace offering multiple price and timing options; Ritchie List, a self-serve listing service for North America; Mascus, a leading European online equipment listing service; Ritchie Bros. Private Treaty, offering privately negotiated sales; and sector-specific solutions GovPlanet, TruckPlanet, and Ritchie Bros. Energy. The Company’s suite of solutions also includes Ritchie Bros. Asset Solutions and Rouse Services LLC, which together provides a complete end-to-end asset management, data-driven intelligence and performance benchmarking system; SmartEquip, an innovative technology platform that supports customers’ management of the equipment lifecycle and integrates parts procurement with both OEMs and dealers; plus equipment financing and leasing through Ritchie Bros. Financial Services.

¹ Special dividend of $1.08 per share would be payable contingent upon closing of the Merger to Ritchie Bros. shareholders of record as of a pre-closing record date to be determined with consent of the TSX.

1

  News Release

Caution Regarding Forward Looking Statements

This news release contains information relating to a proposed business combination transaction between Ritchie Bros. and IAA. This news release contains forward-looking statements and forward-looking information within the meaning of applicable U.S. and Canadian securities legislation (collectively, “forward-looking statements”), including, in particular, Ritchie Bros.’ ability to satisfy the conditions in the merger agreement and consummate the transactions on the anticipated timeline, or at all, the benefits and synergies of the Merger, future opportunities for the combined businesses of Ritchie Bros. and IAA, future financial and operational results, personnel matters and any other statements regarding events or developments that Ritchie Bros. believes or anticipates will or may occur in the future. Forward-looking statements are statements that are not historical facts and are generally, although not always, identified by words such as “expect”, “plan, “anticipate”, “project”, “target”, “potential”, “schedule”, “forecast”, “budget”, “estimate”, “intend” or “believe” and similar expressions or their negative connotations, or statements that events or conditions “will”, “would”, “may”, “could”, “should” or “might” occur. All such forward-looking statements are based on the opinions and estimates of management as of the date such statements are made. Forward-looking statements necessarily involve assumptions, risks and uncertainties, certain of which are beyond Ritchie Bros.’ control, including risks and uncertainties related to: our ability to consummate the Merger and to satisfy the conditions to releasing the proceeds of this offering from escrow; our future strategy, objectives, targets, projections performance; our ability to drive shareholder value; potential growth and market opportunities; potential future mergers and acquisitions, including the proposed acquisition of IAA; our expected indebtedness in connection with the proposed acquisition of IAA; our ability to integrate potential acquisitions, including the Merger; our internet initiatives and the level of participation in our auctions by internet bidders, and the success of our online marketplaces; our ability to grow our businesses, acquire new customers, enhance our sector reach, drive geographic depth and scale our operations; the impact of our new initiatives, services, investments and acquisitions on us and our customers; the severity, magnitude and duration of the COVID-19 pandemic and the direct and indirect impact of such pandemic, as well as responses to the pandemic by the government, business and consumers, on our operations and personnel, commercial activity and demand across our business and our customers’ businesses; the acquisition or disposition of properties; our future capital expenditures and returns on those expenditures; financing available to us from our credit facilities or other sources, our ability to refinance borrowings and the sufficiency of our working capital to meet our financial needs; our ability to add new business and information solutions, including, among others, our ability to maximize and integrate technology to enhance our existing services and support additional value-added service offerings; the supply trend of equipment in the market and the anticipated price environment for late model equipment, as well as the resulting effect on our business and Gross Transaction Value (“GTV”); fluctuations in our quarterly revenues and operating performance resulting from the seasonality of our business; our compliance with all laws, rules, regulations, and requirements that affect our business; effects of various economic, financial, industry and market conditions or policies, including rising interest rates, inflation and the supply and demand for property, equipment or natural resources; the geopolitical situation in Eastern Europe in light of Russia’s invasion of Ukraine; the behavior of equipment pricing; the relative percentage of GTV represented by straight commission or underwritten (guarantee and inventory) contracts, and its impact on revenues and profitability; the effect of any currency exchange and interest rate fluctuations on our results of operations; the grant and satisfaction of equity awards pursuant to our compensation plans; any future declaration and payment of dividends, including the special dividend to be paid to our shareholders in connection with the Mergers, and the tax treatment of any such dividends; our ability to satisfy our present operating requirements and fund future growth through existing working capital, credit facilities and debt; our failure to realize the anticipated benefits of the Merger in the expected time frame or at all; our expectations with respect to the integration and results of operations of IAA and the impact of the Merger and this offering; as well as the risks and uncertainties set forth in Ritchie Bros.’ Annual Report on Form 10-K for the year ended December 31, 2022, which is available on the SEC, SEDAR, and Ritchie Bros.’ websites. The foregoing list is not exhaustive of the factors that may affect Ritchie Bros.’ forward-looking statements. There can be no assurance that forward-looking statements will prove to be accurate, and actual results may differ materially from those expressed in, or implied by, these forward-looking statements. Forward-looking statements are made as of the date of this news release and Ritchie Bros. does not undertake any obligation to update the information contained herein unless required by applicable securities legislation. For the reasons set forth above, you should not place undue reliance on forward-looking statements.

2

  News Release

No Offer or Solicitation

This news release is not intended to and shall not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, or a solicitation of any vote or approval, nor shall there be any offer, solicitation or sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

Important Additional Information and Where to Find It

In connection with the proposed IAA transaction, Ritchie Bros. filed with the SEC and applicable Canadian securities regulatory authorities a registration statement on Form S-4 to register the common shares of Ritchie Bros. to be issued in connection with the proposed IAA transaction on December 14, 2022 (the “Initial Registration Statement”), as amended by Amendment No. 1 to the Initial Registration Statement filed with the SEC and applicable Canadian security regulatory authorities on February 1, 2023 and Amendment No. 2 to the Initial Registration Statement filed with the SEC and applicable Canadian security regulatory authorities on February 9, 2023 (together with the Initial Registration Statement, the “Registration Statement”). The Registration Statement was declared effective by the SEC on February 10, 2023. The Registration Statement includes a joint proxy statement/prospectus which was sent to the shareholders of Ritchie Bros. and stockholders of IAA seeking their approval of their respective transaction-related proposals. Each of Ritchie Bros. and IAA may also file other relevant documents with the SEC and/or applicable Canadian securities regulatory authorities regarding the proposed IAA transaction. This document is not a substitute for the proxy statement/prospectus or Registration Statement or any other document that Ritchie Bros. or IAA may file with the SEC and/or applicable Canadian securities regulatory authorities. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT ON FORM S-4 AND THE RELATED JOINT PROXY STATEMENT/PROSPECTUS, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC AND APPLICABLE CANADIAN SECURITIES REGULATORY AUTHORITIES IN CONNECTION WITH THE PROPOSED IAA TRANSACTION OR INCORPORATED BY REFERENCE IN THE PROXY STATEMENT/PROSPECTUS, CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE, BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT RITCHIE BROS., IAA AND THE PROPOSED IAA TRANSACTION.

Investors and security holders may obtain copies of these documents (when they are available) free of charge through the website maintained by the SEC at www.sec.gov, SEDAR at www.sedar.com or from Ritchie Bros. at its website, investor.ritchiebros.com, or from IAA at its website, investors.iaai.com. Documents filed with the SEC and applicable Canadian securities regulatory authorities by Ritchie Bros. (when they are available) will be available free of charge by accessing Ritchie Bros.’ website at investor.ritchiebros.com under the heading Financials/SEC Filings, or, alternatively, by directing a request by telephone or mail to Ritchie Bros. at 9500 Glenlyon Parkway, Burnaby, BC, V5J 0C6, Canada, and documents filed with the SEC by IAA (when they are available) will be available free of charge by accessing IAA’s website at investors.iaai.com or by contacting IAA’s Investor Relations at investors@iaai.com.

3

  News Release

For more information, please contact:

Ian Malinski

Media Relations Manager

+1.778.331.5432

CorpComm@rbauction.com

For investor inquiries, please contact:

Sameer Rathod

Vice President, Investor Relations & Market Intelligence

+1.510.381.7584

srathod@ritchiebros.com

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XML

Cover	Mar. 15, 2023
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Mar. 15, 2023
Entity File Number	001-13425
Entity Registrant Name	Ritchie Bros. Auctioneers Incorporated
Entity Central Index Key	0001046102
Entity Tax Identification Number	98-0626225
Entity Incorporation, State or Country Code	Z4
Entity Address, Address Line One	9500 Glenlyon Parkway
Entity Address, City or Town	Burnaby
Entity Address, State or Province	BC
Entity Address, Country	CA
Entity Address, Postal Zip Code	V5J0C6
City Area Code	778
Local Phone Number	331-5500
Written Communications	true
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common shares
Document Information [Line Items]
Title of 12(b) Security	Common shares
Trading Symbol	RBA
Security Exchange Name	NYSE
Common Share Purchase Rights
Document Information [Line Items]
Title of 12(b) Security	Common Share Purchase Rights
No Trading Symbol Flag	true
Security Exchange Name	NYSE