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): August 5, 2019

 

 

 

OPTION CARE HEALTH, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware 001-11993 05-0489664

(State or other jurisdiction

of incorporation)

(Commission File Number)

(IRS Employer

Identification No.)

   

3000 Lakeside Dr. Suite 300N

Bannockburn, IL

  60015
(Address of principal executive offices)   (Zip Code)

 

(312)-940-2443

(Registrant’s telephone number, including area code)

 

BioScrip, Inc.

600 Broadway, Suite 700, Denver, Colorado 80202

(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:

 

¨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))

 

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.

 

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

 

Title of each class   Trading
Symbol(s)
  Name of each exchange on which
registered
Common Stock, $.0001 par value   BIOS  

Nasdaq Global Select Market

 

 

 

 

 

 

 

INTRODUCTORY NOTE

 

This Current Report on Form 8-K of Option Care Health, Inc. is being filed concurrently with a separate Current Report on Form 8-K of Option Care Health, Inc. On August 6, 2019, HC Group Holdings II, Inc., a Delaware corporation (“HC II” or “Omega”), which wholly owns the group of operating subsidiaries known as Option Care (“Option Care”), first merged (the “First Merger”) with and into Beta Sub, Inc. (“Beta Sub, Inc.” or “Merger Sub Inc.”), a Delaware corporation and a wholly owned subsidiary of BioScrip, Inc., a Delaware corporation (“BioScrip” or the “Company”) with HC II as the surviving corporation (the “Surviving Corporation”). Immediately following the First Merger, the Surviving Corporation was merged with and into Beta Sub, LLC, (the “Second Merger”), a Delaware limited liability company and a wholly owned subsidiary of BioScrip (“Beta Sub, LLC” or “Merger Sub LLC”) (the First Merger and such subsequent merger referred to as the “Mergers”). Upon completion of the Mergers, the Surviving Corporation operates as a wholly owned subsidiary of BioScrip under the name HC Group Holdings II, LLC. The Mergers were effectuated pursuant to an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company, HC II, HC Group Holdings I, LLC, a Delaware limited liability company (“Omega Parent”), HC Group Holdings III, Inc. (solely for limited purposes set forth therein), Beta Sub, Inc. and Beta Sub, LLC, dated as of March 14, 2019.

 

As a result of the Mergers, Omega Parent owned approximately 80% of the issued and outstanding shares of the combined company immediately following the completion of the First Merger.

 

At a special meeting of the Company’s stockholders held on August 2, 2019, the Company’s stockholders approved, among other things, an issuance of the Company’s shares of common stock, par value $0.0001 per share (the “Common Stock”) to Omega Parent pursuant to the Merger Agreement, and the adoption of the Company’s third amended and restated certificate of incorporation (the “Amended Charter”).

 

The Amended Charter became effective on August 6, 2019 pursuant to and upon filing the Certificate of Amendment to the Company’s Second Amended and Restated Certificate of Incorporation (the “Amended Charter Effective Time”) with the Secretary of State of the State of Delaware. Immediately following the Amended Charter Effective Time, the First Merger became effective upon the filing of the First Certificate of Merger with the Secretary of State of the State of Delaware, and the Second Merger became effective upon the filing of the Second Certificate of Merger with the Secretary of State of the State of Delaware. At the Amended Charter Effective Time, the Mergers occurred with the Surviving Corporation operating as a wholly owned subsidiary of BioScrip. Immediately following the Amended Charter Effective Time, the Company filed a Certificate of Amendment with the State of Delaware to change the Company’s name to Option Care Health, Inc.

 

Item 1.01. Entry into a Material Definitive Agreement

 

Registration Rights Agreement

 

In connection with the Mergers, the Company and Omega Parent entered into a Registration Rights Agreement at the closing of the Mergers on August 6, 2019 (the “Registration Rights Agreement”). The Registration Rights Agreement, among other things, grants customary registration rights to Omega Parent, including demand registration rights, shelf registration rights and piggyback registration rights.

 

A description of the material terms of the Registration Rights Agreement has been previously disclosed under the section “The Ancillary Agreements — Registration Rights Agreement” to the Company’s definitive proxy statement on Schedule 14A, filed with the United States Securities and Exchange Commission (the “Commission”) on June 26, 2019 and is incorporated herein by reference.

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

 

 

 

 

Subject to certain limited exceptions set forth in the Merger Agreement, including the ability to transfer, in the aggregate, an amount not to exceed 20% of the outstanding shares of Common Stock immediately following the closing of the Mergers in Rule 144 sales, Omega Parent is prohibited from transferring, selling, exchanging, encumbering or disposing of any Common Stock issued to it in as Merger Consideration or Escrowed Shares, each as defined below, for the period commencing on the closing date and ending on the 12-month anniversary of the date of the Merger Agreement.

 

Director Nomination Agreement

 

In connection with the Mergers, the Company and Omega Parent entered into a Director Nomination Agreement on August 6, 2019 (the “Director Nomination Agreement”).

 

The Director Nomination Agreement provides that, from and after the closing of the Mergers until the date that Omega Parent and its affiliates cease to beneficially own Common Stock representing at least 10% of the voting power of the then-outstanding Common Stock, Omega Parent is entitled to nominate for election to the Company’s Board of Directors (the “Board”) or any committee of the Board, a number of directors equal to the product obtained by multiplying (a) the percentage of the total voting power of the then-outstanding Common Stock then beneficially owned by Omega Parent and its affiliates and (b) the authorized number of directors on the Board, including any vacancies, with such product rounded up to the nearest whole number in all cases. The Director Nomination Agreement also provides Omega Parent with the right to fill any vacancies created by the removal, death, disability, disqualification or resignation from the Board of any of its nominees that is elected to the Board. In the Director Nomination Agreement, the Company agrees to use its reasonable best efforts to ensure that any nominees designated by Omega Parent in accordance with the Director Nomination Agreement are included in the Board’s slate of nominees to the stockholders for each election of directors and that each nominee designated by Omega Parent is included in the proxy statement prepared by management of the Company in connection with soliciting proxies for every meeting of the stockholders at which directors are voted on for election.

 

The Director Nomination Agreement automatically terminates on the date on which Omega Parent and its affiliates cease to beneficially own at least 10% of the total voting power of the then outstanding Common Stock.

 

A description of the material terms of the Director Nomination Agreement has been previously disclosed under the section “The Ancillary Agreements — Director Nomination Agreement” on the Company’s definitive proxy statement on Schedule 14A, filed with the Commission on June 26, 2019 and is incorporated herein by reference.

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Director Nomination Agreement, which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

 

Secured Financing

 

In connection with the Mergers and to (among other things) finance a portion of the Mergers, Option Care and the Company entered into (i) a first lien term loan credit agreement among HC Group Holdings II, LLC (“HC II, LLC”), as the Initial Borrower prior to the debt assumption, BioScrip, as Parent Borrower, upon the consummation of the debt assumption, the guarantors party thereto from time to time, Bank of America, N.A., as the Administrative Agent, the lenders party thereto from time to time, and the other parties party thereto from time to time, dated as of August 6, 2019 (the “First Lien Credit Agreement”), pursuant to which the Initial Borrower incurred a $925 million senior secured first lien term loan facility (the “First Lien Term Loan Facility”); (ii) an ABL credit agreement among HC II, LLC, as the Initial Borrower prior to the debt assumption, BioScrip, as Parent Borrower, upon the consummation of the debt assumption, the other borrowers and guarantors party thereto from time to time, Bank of America, N.A., as the Administrative Agent, Swing Line Lender and Issuing Bank, and the other parties party thereto from time to time, dated as of August 6, 2019 (the “ABL Credit Agreement”), pursuant to which the lenders party thereto have made available a $150 million senior secured first lien asset-based revolving credit facility and (iii) an indenture among HC II, LLC, as the Initial Issuer prior to the debt assumption, BioScrip, as Parent Issuer, upon the consummation of the debt assumption, subsidiary issuers and guarantors party thereto from time to time, and Ankura Trust Company, LLC, as the Trustee and Collateral Agent, dated as of August 6, 2019 (the “Second Lien Notes Indenture”), pursuant to HC II, LLC issued $400 million aggregate principal amount of second lien notes. The Company, Goldman Sachs Merchant Banking Division and Ares Management entered into a Note Purchase Agreement, dated August 6, 2019 (the “Note Purchase Agreement”) pursuant to which Goldman Sachs Merchant Banking Division and Ares Management agreed to purchase the second lien notes.

 

First Lien Term Loan

 

On August 6, 2019, Omega, as initial borrower (prior to the debt assumption, as the “Initial Borrower”), the Company, as parent borrower (following the debt assumption, as the “Parent Borrower” and, together with the Initial Borrower, the “Borrowers”), certain subsidiaries of Omega and the Company as guarantors (the “Guarantors”) and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”), entered into the First Lien Credit Agreement. Capitalized terms used in this description of the First Lien Credit Agreement in this Item 1.01 but not defined herein have the meaning assigned to such terms in the First Lien Credit Agreement.

 

 

 

 

Borrowings under the First Lien Term Loan Facility will bear interest at a rate equal to, at the option of the Parent Borrower, either (i) the then applicable Eurocurrency Rate plus an Applicable Rate of 4.50% or (ii) the then applicable Base Rate plus an Applicable Rate of 3.50%; provided that, in each case, the respective Applicable Rates shall be subject to a 25 basis point step-down if either (x) the First Lien Net Leverage Ratio is less than or equal to 3.70:1.00 or (y) the Term B Loans have a B1 rating from Moody’s and a B rating from S&P. The Parent Borrower is also required to pay customary agency fees under the First Lien Credit Agreement.

 

The First Lien Credit Agreement requires scheduled quarterly payments on the First Lien Term Loan Facility in annual amounts equal to 0.25% of the original principal amount of the First Lien Term Loan Facility outstanding on August 6, 2019 (the “Closing Date”) commencing with the last day of the second full fiscal quarter after the Closing Date with the balance paid at maturity.

 

In addition, the First Lien Term Loan Facility requires the Parent Borrower to prepay outstanding term loan borrowings, subject to certain exceptions, with:

 

50% (which percentage will be reduced if the Parent Borrower attains certain leverage ratios) of the Parent Borrower’s annual excess cash flow;

 

100% of the net cash proceeds of all non-ordinary course asset sales and other dispositions of property; and

 

100% of the net cash proceeds of any issuance or incurrence of debt, other than proceeds from debt permitted under the First Lien Credit Agreement. The Parent Borrower may, with limited exceptions, voluntarily repay outstanding loans under the First Lien Term Loan Facility at any time, without prepayment premium or penalty, subject to customary “breakage” costs with respect to Eurocurrency Rate Loans.

 

All obligations under the First Lien Term Loan Facility are unconditionally guaranteed by each of the Parent Borrower’s existing and future direct and indirect material, wholly owned domestic subsidiaries, subject to certain exceptions. The obligations are secured by first priority security interest in each of the Parent Borrower’s subsidiaries’ capital stock (subject to certain exceptions) and substantially all of the Parent Borrower’s and the other Loan Party’s property and assets (other than the ABL Priority Collateral), (the “Term Loan Priority Collateral”), in each case subject to certain exceptions, and a second priority security interest in the ABL Priority Collateral (as defined below).

 

The First Lien Credit Agreement contains certain customary affirmative covenants and events of default. The negative covenants in the First Lien Credit Agreement include, among other things, limitations (none of which are absolute) on the Parent Borrower’s and its Restricted Subsidiaries’ ability to:

 

incur additional debt or issue certain preferred shares;
create liens on certain assets;
make certain loans or investments (including acquisitions);
pay dividends on or make distributions in respect of its capital stock or make other restricted payments;
consolidate, merge, sell or otherwise dispose of all or substantially all of its assets;
sell assets;
enter into certain transactions with its affiliates;
change the nature of its business;
restrict liens; and
modify the terms of certain debt or organizational agreements.

 

The lenders and their affiliates have in the past engaged, and may in the future engage, in transactions with and perform services, including commercial banking, financial advisory and investment banking services, for the Parent Borrower and its affiliates in the ordinary course of business for which they have received or will receive customary fees and expenses.

 

 

 

 

The First Lien Term Loan matures on August 6, 2026.

 

ABL Credit Agreement

 

On August 6, 2019, the Borrowers, the Guarantors and the Administrative Agent, entered into the ABL Credit Agreement pursuant to which certain financial institutions provided an asset based loan revolving credit facility (the “ABL Facility”) with aggregate commitments of $150 million (including a letter of credit sub-facility and swing line loan sub-facility). Capitalized terms used in this description of the ABL Credit Agreement but not defined herein in this description of the ABL Credit Facility in this Item 1.01 have the meaning assigned to such terms in the ABL Credit Agreement.

 

Borrowings under the ABL Facility will bear interest at a rate equal to, at the option of the Parent Borrower, either (i) the then applicable Eurocurrency Rate plus an Applicable Rate of 2.50% or (ii) the then applicable Base Rate plus an Applicable Rate of 1.50%; provided that, in each case, the respective Applicable Rates shall be subject to a (x) 25 basis point step-up if Historical Excess Availability as a percentage of the Line Cap is less than 33.33% or (y) 25 basis point step-down if Historical Excess Availability as a percentage of the Line Cap is greater than or equal to 66.66%.

 

In addition to paying interest on outstanding principal under the ABL Facility, the Parent Borrower is required to pay a commitment fee at a rate equal to 0.250% or 0.375% per annum based on average daily revolving credit exposure under the ABL Facility in respect of the unutilized commitments thereunder. The Parent Borrower is also required to pay customary agency fees under each ABL Facility as well as letter of credit participation fees computed at a rate per annum equal to the Applicable Rate for Eurocurrency Rate Loans on the dollar equivalent of the daily stated amount of outstanding letters of credit, plus such letter of credit issuer’s customary documentary and processing fees and charges and a fronting fee computed at a rate equal to 0.125% per annum on the daily stated amount of each letter of credit under the ABL Facility.

 

The ABL Facility requires the Parent Borrower to prepay outstanding revolving credit borrowings, subject to certain exceptions, if the Total Revolving Credit Exposure exceeds the Line Cap.

 

The Parent Borrower may voluntarily repay outstanding loans under the ABL Facility at any time, without prepayment premium or penalty.

 

All obligations under the ABL Facility are unconditionally guaranteed by each of the Parent Borrower’s existing and future direct and indirect material, wholly owned domestic subsidiaries, subject to certain exceptions. The obligations are secured by first priority security interest on of each the Parent Borrower’s and each of its subsidiaries’ inventory, accounts receivable, cash, deposit accounts and certain assets and property related thereto (the “ABL Priority Collateral”), in each case subject to certain exceptions, and a third priority security interest in the Term Loan Priority Collateral.

 

The ABL Facility matures on August 6, 2024.

 

Second Lien Notes Indenture

 

On August 6, 2019, prior to the consummation of the Mergers, Omega, as initial issuer (prior to the debt assumption, the “Initial Issuer”), the Company, as parent issuer (following the debt assumption, the “Parent Issuer” and, together with the Initial Issuer, the “Issuers”), the Guarantors and Ankura Trust Company, LLC, as trustee (in such capacity, the “Ankura Trustee”) and collateral agent (in such capacity, the “Ankura Collateral Agent”), entered into an indenture (the “Indenture”) with respect to the Senior Secured Second Lien PIK Toggle Floating Rate Notes due 2027 (the “Notes”). Capitalized terms used in this description of the Indenture in this Item 1.01 but not defined herein have the meaning assigned to such terms in the Indenture.

 

 

 

 

Pursuant to the terms of the Indenture, the Issuers will pay interest, at the option of the Parent Issuer, (i) in cash at a floating rate equal to the sum of the LIBOR rate plus 8.75% per annum (the “Applicable Rate”), or (ii) for any interest period ending on or prior to August 6, 2020, 100% in kind (the “100% PIK Option”), or (iii) for any interest period ending on or prior to August 6, 2021, 50% in kind, with the other 50% to be paid in cash (the “50% PIK Option”); provided that if the Parent Issuer elects the 100% PIK Option in any interest period, the applicable interest rate for such interest period will be the Applicable Rate plus an additional 1.00% per annum, and provided further that if the Parent Issuer elects the 50% PIK Option in any interest period, the applicable interest rate for such interest period will be the Applicable Rate plus an additional 0.50% per annum, with 50% of such interest for such period to be paid by the Issuer in kind and the other 50% to be paid in cash. Interest is payable quarterly in arrears on the 6th day of each November, February, May and August, commencing November 6, 2019. The Notes mature on August 6, 2027.

 

The Notes are senior secured obligations of the Issuers. The Issuers’ joint and several obligations under the Notes and the Indenture are jointly and severally guaranteed (the “Guarantees”) by each wholly-owned domestic restricted subsidiary of the Parent Issuer that the Parent Issuer has caused or will cause to become a Guarantor pursuant to the terms of the Indenture. In addition, the Issuers, the Guarantors and the Collateral Agent have entered into collateral documents dated the Closing Date (the “Collateral Documents”). Pursuant to the Collateral Documents, the Issuers’ obligations under the Indenture and the Notes and the Guarantors’ Guarantees are secured by a third priority security interest in the ABL Priority Collateral and a second priority security interest in the Term Loan Priority Collateral.

 

The Parent Issuer may redeem the Notes at its option, in whole or in part, at any time and from time to time from and after the Closing Date for a redemption price equal to:

 

·if redeemed during the twelve-month period beginning on August 6, 2019, 103% of the principal amount thereof;

 

·if redeemed during the twelve-month period beginning on August 6, 2020, 102% of the principal amount thereof;

 

·if redeemed during the twelve-month period beginning on August 6, 2021, 101% of the principal amount thereof; and

 

·if redeemed on or after August 5, 2022, 100% of the principal amount thereof;

 

in each case, plus accrued and unpaid interest, if any, on the Notes redeemed to, but excluding, the applicable redemption date.

 

The Parent Issuer is obligated to make an offer to purchase all outstanding Notes in cash at 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to but excluding the date of purchase, upon a change of control.

 

The Indenture requires the Parent Issuer and its restricted subsidiaries, as applicable, to comply with certain other covenants including, but not limited to, covenants that, subject to certain exceptions, limit the Parent Issuer’s and the restricted subsidiaries’ ability to: (i) incur additional indebtedness; (ii) grant liens; (iii) engage in certain sale/leaseback, merger, consolidation or asset sale transactions; (iv) make certain investments; (v) pay dividends or make distributions; (vi) engage in affiliate transactions and (vii) change the nature of their business.

 

The Indenture provides for certain customary events of default.

 

Note Purchase Agreement

 

On August 6, 2019, prior to the consummation of the Mergers, Omega and the Company entered into a note purchase agreement (the “Note Purchase Agreement”) among Omega as Initial Issuer, the Company as Parent Issuer, the Guarantors party thereto and the purchasers named therein (the “Purchasers”) relating to the sale of $400 million aggregate principal amount of the Notes to the Purchasers on the Closing Date in a private placement exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). The Note Purchase Agreement contains customary representations, warranties, covenants and closing conditions.

 

 

 

 

A portion of the net proceeds from the sale of the Notes and borrowings under the First Lien Term Loan will be used to pay all outstanding borrowings and redeem all outstanding notes of Omega and the Company and terminate or satisfy and discharge all related credit agreements and indentures. In connection with the Mergers, the Company satisfied and discharged its obligations under the (i) Indenture, dated as of February 11, 2014 governing its outstanding 8.875% Senior Notes due 2021 (ii) first lien note purchase agreement, dated June 29, 2017, pursuant to which the Company issued first lien senior secured notes and (ii) a second lien note purchase agreement, dated June 29, 2017 pursuant to which the Company (a) issued second lien senior secured notes and (b) had the ability to draw upon and issue second lien delayed draw senior secured notes. Omega redeemed all outstanding notes and satisfied and discharged its obligations under the Indenture, dated as of April 7, 2015, governing its Senior Secured Second Lien Floating Rate Notes due 2023. Omega also repaid all borrowings under and terminated its credit agreements governing it $80 million revolving credit facility, $415 million first lien term loan and $150 million second lien term loan.

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the First Lien Term Loan Credit Agreement, the ABL Credit Agreement, the Second Lien Notes Indenture and the Note Purchase Agreement, copies of which are attached hereto as Exhibits 10.3, 10.4, 4.1, and 10.5, respectively, and each is incorporated herein by reference.

 

Amendment to Tax Asset Protection Plan

 

On August 5, 2019, the Company entered into an Amendment to its Tax Asset Protection Plan (the “Amendment”) between the Company and American Stock Transfer & Trust Company, LLC (the “Rights Agent”) that amends the Tax Asset Protection Plan dated August 11, 2016, (the “TAPP”) between the Company and the Rights Agent.

 

The Amendment amends the definition of “Final Expiration Date” under the TAPP to mean 12:01 A.M. on August 6, 2019.

 

The foregoing description of the Amendment is qualified in its entirety by reference to the full text of the Amendment, attached hereto as Exhibit 4.2 and incorporated herein by reference.

 

Item 1.02 Termination of a Material Definitive Agreement.

 

The sections entitled Secured Financing and Amendment to Tax Asset Protection Plan under Item 1.01 of this Current Report on Form 8-K are incorporated into this Item 1.02 by reference.

 

Item 2.01. Completion of Acquisition or Disposition of Assets.

 

The information set forth in the Introductory Note and under Item 5.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

 

Item 2.03. Creation of Direct Financial Obligations.

 

The section entitled Amended and Restated Certificate of Designations of Series A Preferred Stock under Item 5.03 of this Current Report on Form 8-K is incorporated into this Item 2.03 by reference.

 

 

 

 

Item 3.02. Unregistered Sales of Equity Securities.

 

The information set forth below under Item 5.01 of this Current Report on Form 8-K relating to the issuance of shares of Common Stock to Omega Parent is incorporated into this Item 3.02 by reference. For the issuance of Common Stock to Omega Parent, the Company is relying on the exemption from the registration statements of the Securities Act afforded by Section 4(a)(2) thereof and the rules and regulations of the Commission promulgated thereunder.

 

Item 3.03 Material Modification to Rights of Security Holders.

 

The section entitled Amendment to Tax Asset Protection Plan under Item 1.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

 

Amendment to Registration Rights Agreement

 

On March 14, 2019, in connection with the Mergers, the Company entered into Amendment No. 1 to the Registration Rights Agreement (the “RRA Amendment”) with the Holders, pursuant to which the Company and the Holders agreed to amend that certain Registration Rights Agreement, dated June 29, 2017, by and among the Company and the Holders, to provide the Holders with registration rights for the Amendment Shares. The RRA Amendment became effective upon the consummation of the First Merger on August 6, 2019. The RRA Amendment was previously disclosed on the Company’s Current Report on Form 8-K filed with the Commission on March 15, 2019.

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the RRA Amendment, which is attached hereto as Exhibit 10.6 and is incorporated herein by reference.

 

Item 5.01 Change in Control of the Registrant.

 

The information set forth in the Introductory Note and the sections entitled Director Nomination Agreement and Secured Financing under Item 1.01 of this Current Report on Form 8-K are incorporated to this Item 5.01 by reference.

 

Under the Merger Agreement, each share of HC II common stock, par value $0.01 per share, issued and outstanding immediately prior to the effective time of the First Merger on August 6, 2019 (other than shares that were held in treasury of HC II or owned, directly or indirectly, by the Company, Merger Sub Inc. or Merger Sub LLC immediately prior to the effective time of the First Merger (the “Excluded Shares”)) was cancelled and converted into the right of Omega Parent to receive 542,261,567 shares of Common Stock (the “Merger Consideration”). At the effective time of the First Merger, each Excluded Share was automatically canceled and ceased to exist, and no consideration was exchanged therefor.

 

In addition to the Merger Consideration, the Company issued to Omega Parent at the effective time of the First Merger 28,193,428 shares of Common Stock in respect of certain outstanding and unvested contingent restricted stock units (the “Escrowed Shares”).

 

Immediately following the consummation of the First Merger, Omega Parent owned approximately 80% of the outstanding shares of Common Stock on a fully-diluted basis utilizing the treasury stock method. Immediately following the consummation of the First Merger, the holders of Common Stock as of immediately prior to the consummation of the First Merger collectively owned approximately 20% of the outstanding shares of Common Stock, on a fully-diluted basis utilizing the treasury stock method.

 

A description of the Merger Agreement was previously disclosed in the section “The Merger Agreement” to the Company’s definitive proxy statement on Schedule 14A, filed with the Commission on June 26, 2019, and incorporated herein by reference.

 

 

 

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Third Amended and Restated Certificate of Incorporation

 

Pursuant to the Merger Agreement, the Second Amended and Restated Certificate of Incorporation of the Company was amended by the Amended Charter, which is attached to the Merger Agreement substantially in the form of Exhibit A, which provides, among other things, (i) an increase in authorized shares to permit issuance of a sufficient number of shares as merger consideration, and otherwise in connection with the Merger Agreement and the transactions contemplated thereby, (ii) a prohibition on Company stockholders’ ability to act by written consent after the date on which Omega Parent and its affiliates cease to beneficially own, in the aggregate, capital stock of the Company representing 50% or more of the voting power of the Company, referred to as the “trigger date”, (iii) the right of Company stockholders to remove directors with or without cause with the consent of (A) a majority of the voting power of the Company’s capital stock prior to the trigger date, or (B) a 66⅔% supermajority of the voting power of the Company’s capital stock after the trigger date, (iv) the right of the Company’s stockholders to amend the bylaws or certificate of incorporation of the Company with the consent of (A) a majority of the voting power of the Company’s capital stock prior to the trigger date, or (B) a 66⅔% supermajority of the voting power of the Company’s capital stock after the trigger date, (v) the waiver of certain fiduciary duties of the Company’s officers and directors, including the duty to offer certain business opportunities to the Company, that would otherwise be applicable to the officers and directors of the Company under Delaware law, and (vi) the right, prior to the trigger date, of the holders of a majority of the voting power of the then-outstanding shares of capital stock of the Company, to cause a special meeting of the Company’s stockholders to be called.

 

On August 6, 2019, the Board approved an amendment to the Amended Charter to change the Company’s name from BioScrip, Inc. to Option Care Health, Inc. Immediately following the Amended Charter Effective Time, the Company filed a Certificate of Amendment to change the Company’s name to Option Care Health, Inc. (the “Certificate of Amendment”).

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Amended Charter and the Certificate of Amendment, which are attached hereto as Exhibit 3.1 and Exhibit 3.3, respectively, and are incorporated herein by reference.

 

 

 

 

Amended and Restated Certificate of Designations of Series A Preferred Stock

 

At the Special Meeting, the Company’s stockholders approved an amendment to the Company’s Certificate of Designations (the “Amended Series A COD”) of Series A Convertible Preferred Stock, par value $0.0001 (the “Series A Preferred Stock”) such that, immediately following the effectiveness of the Mergers (i) (A) four one-hundredths (4/100) of each share of Series A Preferred Stock issued by the Company on March 9, 2015 then issued and outstanding was automatically converted into 2.5226 shares of Common Stock and (B) four one-hundredths (4/100) of each share of Series A Preferred Stock issued by the Company on July 29, 2015 then issued and outstanding was automatically converted into 2.4138 shares of Common Stock, totaling 53,388 shares of Common Stock in the aggregate and (ii) ninety-six one-hundredths (96/100) of each share of Series A Preferred Stock referred to in the foregoing clause (i) was redeemed for an amount in cash equal to 120% of the liquidation preference then-applicable to such share of Series A Preferred Stock as of the date of such redemption (including any dividends accrued through such date).

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Amended Series A COD, which is attached hereto as Exhibit 3.2 and is incorporated herein by reference.

 

Amended and Restated Bylaws

 

The Company’s Amended and Restated Bylaws in effect immediately prior to the effective time of the First Merger were amended (as amended, the “Bylaws”) as of the effective time of the First Merger to reflect certain governance terms provided in the Merger Agreement. Pursuant to the Merger Agreement, immediately following the effective time of the First Merger, the Company caused its board to consist of ten directors, (i) eight of whom were selected by Omega Parent, and (ii) two of whom were members of the BioScrip’s board immediately prior to the effective time of the First Merger (the “Continuing BioScrip Directors”). Furthermore, pursuant to the Merger Agreement, the Company amended its Bylaws, effective as of the effective time of the First Merger to provide that, if, following the closing, any Continuing BioScrip Director resigns or is unable to serve for any other reason prior to the first anniversary following the first annual meeting after the effective time of the First Merger (in each case, a “Removed Designee”), then, in each case, the remaining Continuing BioScrip Director (if any) will recommend a replacement for such Removed Designee to the Governance, Compliance and Nominating Committee of the Company’s board, which will consider such replacement (and, if not approved by such committee, any additional replacements recommended by the remaining Continuing BioScrip Director) in good faith.

 

The foregoing summary does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Bylaws, which are attached hereto as Exhibit 3.4 and are incorporated herein by reference.

  

 

 

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

The exhibits listed in the following Exhibit Index are filed as part of this Current Report.

 

Exhibit No.   Description
3.1   Third Amended and Restated Certificate of Incorporation of BioScrip, Inc.
     
3.2   Certificate of Amendment to the Certificate of Designations of Series A Convertible Preferred Stock of BioScrip, Inc.
     
3.3   Certificate of Amendment to Certificate of Incorporation, amending the Third Amended and Restated Certificate of Incorporation of BioScrip, Inc., changing the name “BioScrip, Inc.” to “Option Care Health, Inc.”
     
3.4   Amended and Restated Bylaws of Option Care Health, Inc., formerly known as BioScrip, Inc.
     
4.1   Second Lien Notes Indenture, dated as of August 6, 2019, among HC Group Holdings II, LLC, as the Initial Issuer, BioScrip, Inc., as the Parent Issuer, subsidiary issuers and guarantors party thereto from time to time, and Ankura Trust Company, LLC, as the Trustee and Collateral Agent.
     
4.2   Amendment to the Tax Asset Protection Plan, dated as of August 5, 2019, by and between BioScrip, Inc. and American Stock Transfer & Trust Company, LLC.
     
10.1   Registration Rights Agreement, dated as of August 6, 2019, by and among BioScrip, Inc. and HC Group Holdings I, LLC.
     
10.2   Director Nomination Agreement, dated as of August 6, 2019, by and among the BioScrip, Inc. and HC Group Holdings I, LLC.
     
10.3   First Lien Credit Agreement, dated as of August 6, 2019, among HC Group Holdings II, LLC, as the Initial Borrower, BioScrip, Inc., as the Parent Borrower, the guarantors party thereto from time to time, Bank of America, N.A., as the Administrative Agent, the lenders party thereto from time to time, BofA Securities, Inc., as Lead Arranger and Bookrunner and as Syndication Agent and Documentation Agent.
     
10.4   ABL Credit Agreement, dated as of August 6, 2019, among HC Group Holdings II, LLC, as the Initial Borrower, BioScrip, Inc., as the Parent Borrower, and Bank of America N.A., as the Administrative Agent, Issuing Bank and Swing Line Lender, the other lenders party thereto from time to time and Bank of America, N.A. and ACF Finco I LP as Joint Lead Arrangers and Joint Lead Bookrunners.
     
10.5   Note Purchase Agreement, dated as of August 6, 2019, among HC Group Holdings II, LLC, as the Initial Issuer, BioScrip, Inc., as the Parent Issuer, subsidiary issuers and guarantors party thereto from time to time, and the several initial purchasers party thereto.
     
10.6   Amendment No. 1 to Registration Rights Agreement by and between BioScrip, Inc. and the stockholders of the Company signatory thereto (incorporated by reference herein to Exhibit 10.4 on the Company’s Current Report on Form 8-K filed with the Commission on March 15, 2019).

 

 

 

 

SIGNATURE

 

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, thereunto duly authorized.

 

 

OPTION CARE HEALTH, INC.

     
  By: /s/ Clifford E. Berman
    Name: Clifford E. Berman
August 7, 2019   Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

 

Exhibit 3.1

 

THIRD AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

BIOSCRIP, INC.

* * * * *

 

Daniel Greenleaf, being the President and Chief Executive Officer of BioScrip, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY as follows:

 

FIRST: The present name of the Corporation is BioScrip, Inc. The Corporation was incorporated under the name MIM Corporation by the filing of its original Certificate of Incorporation with the Delaware Secretary of State on March 22, 1996. The Corporation filed its Second Amended and Restated Certificate of Incorporation on March 9, 2005 (as amended and restated, the “Certificate of Incorporation”).

 

SECOND: At a meeting duly called and held, at which all directors were present and voting in favor, the Board of Directors of the Corporation adopted resolutions authorizing the Corporation to amend, integrate and restate the Certificate of Incorporation of the Corporation in its entirety to read as set forth in Exhibit A attached hereto and made a part hereof (the “Restated Certificate”).

 

THIRD: The Restated Certificate restates and integrates and further amends the Certificate of Incorporation of this Corporation.

 

FOURTH: The Restated Certificate was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware.

 

* * * * *

 

 

 

 

IN WITNESS WHEREOF, BioScrip, Inc. has caused this Third Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on this 6th day of August, 2019.

 

  BIOSCRIP, INC.
   
  By: /s/ Daniel Greenleaf
  Name: Daniel Greenleaf
  Title: President and Chief Executive Officer

 

 

 

 

Exhibit A

 

THIRD AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

BIOSCRIP, INC.

 

ARTICLE ONE

 

The name of the corporation is BioScrip, Inc. (the “Corporation”).

 

ARTICLE TWO

 

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at such address is The Corporation Trust Company.

 

ARTICLE THREE

 

The nature and purpose of the business of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (“DGCL”).

 

ARTICLE FOUR

 

Section 1.          Authorized Shares. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 1,050,000,000 shares, consisting of two classes as follows:

 

1.          50,000,000 shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”); and

 

2.          1,000,000,000 shares of Common Stock, par value $0.0001 per share (the “Common Stock”).

 

The Preferred Stock and the Common Stock shall have the designations, rights, powers and preferences and the qualifications, restrictions and limitations thereof, if any, set forth below.

 

Section 2.          Preferred Stock. The Board of Directors of the Corporation (the “Board of Directors”) is authorized, subject to limitations prescribed by law, to provide, by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, and with respect to each series, to establish the number of shares to be included in each such series, and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other special rights, if any, of the shares of each such series, and any qualifications, limitations or restrictions thereof. The powers (including voting powers), preferences, and relative, participating, optional and other special rights of each series of Preferred Stock and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the approval of the Board of Directors and by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors, without the separate vote of the holders of the Preferred Stock as a class, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

1  

 

 

Pursuant to the authority conferred upon the Board of Directors by this Article Four, the Board of Directors created a series of (i) 825,000 shares of Preferred Stock designated as the Series A Convertible Preferred Stock (the “Series A Preferred Stock”) by filing the Certificate of Designations of Series A Convertible Preferred Stock, par value $0.0001 per share, of the Corporation with the Secretary of State of the State of Delaware (the “Secretary of State”) on March 9, 2015, as amended by that certain Certificate of Amendment filed with the Secretary of State of the State of Delaware on August 6, 2019 (as amended, the “Series A Certificate of Designations”) and (ii) 625,000 shares of Preferred Stock designated as the Series C Convertible Preferred Stock (the “Series C Preferred Stock”) by filing the Certificate of Designations of Series C Convertible Preferred Stock, par value $0.0001 per share, of the Corporation with the Secretary of State on June 14, 2016 (the “Series C Certificate of Designations”). The voting powers, designations, preferences and relative, participating, optional or other special rights of the shares of (x) the Series A Preferred Stock, and the qualifications, limitations and restrictions thereof, are as set forth in the Series A Certificate of Designations, and are incorporated herein by reference and (y) the Series C Preferred Stock, and the qualifications, limitations and restrictions thereof, are as set forth in the Series C Certificate of Designations, and are incorporated herein by reference.

 

Section 3.          Common Stock.

 

(a)          Except as otherwise provided by the DGCL or the Certificate of Incorporation and subject to the rights of holders of any series of Preferred Stock, all of the voting power of the stockholders of the Corporation shall be vested in the holders of the Common Stock. Each share of Common Stock shall entitle the holder thereof to one vote for each share held by such holder on all matters voted upon by the stockholders of the Corporation; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) or pursuant to the DGCL.

 

(b)          Except as otherwise required by law or expressly provided in this Certificate of Incorporation, each share of Common Stock shall have the same powers, rights and privileges and shall rank equally, share ratably and be identical in all respects as to all matters.

 

2  

 

 

(c)          Subject to the rights of the holders of Preferred Stock and to the other provisions of applicable law and this Certificate of Incorporation, holders of Common Stock shall be entitled to receive equally, on a per share basis, such dividends and other distributions in cash, securities or other property of the Corporation if, as and when declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor.

 

(d)          Subject to the rights of holders of Preferred Stock, in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the Corporation’s debts and any other payments required by law and amounts payable upon shares of Preferred Stock ranking senior to the shares of Common Stock upon such dissolution, liquidation or winding up, if any, the remaining net assets of the Corporation shall be distributed to the holders of shares of Common Stock and the holders of shares of any other class or series ranking equally with the shares of Common Stock upon such dissolution, liquidation or winding up, equally on a per share basis.

 

ARTICLE FIVE

 

Section 1.          Board of Directors. Except as otherwise provided in this Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

 

Section 2.          Number of Directors. Subject to any rights of the holders of any class or series of Preferred Stock to elect additional directors under specified circumstances or otherwise, the number of directors which shall constitute the Board of Directors shall initially be 10 and, thereafter, shall be fixed from time to time exclusively by resolution of the Board.

 

Section 3.          Election and Term of Office. The directors shall be elected by a plurality of the votes cast; provided that, whenever the holders of any class or series of capital stock of the Corporation are entitled to elect one or more directors pursuant to the provisions of this Certificate of Incorporation (including, but not limited to, any duly authorized certificate of designation), such directors shall be elected by a plurality of the votes cast by such holders. At each annual meeting of stockholders, each director shall be elected to hold office until the next annual meeting and until his or her successor shall be elected and qualified or until his or her earlier death, disqualification, resignation or removal. Nothing in this Certificate of Incorporation shall preclude a director from serving consecutive terms. Elections of directors need not be by written ballot unless the Bylaws of the Corporation (as amended and/or restated the “Bylaws”) shall so provide.

 

Section 4.          Newly-Created Directorships and Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding and except as otherwise set forth in that certain Director Nomination Agreement between the Corporation and HC Group, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, disqualification, removal from office or any other cause may be filled only by resolution of a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and may not be filled in any other manner. A director elected or appointed to fill a vacancy shall serve for the unexpired term of his or her predecessor in office and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. A director elected or appointed to fill a position resulting from an increase in the number of directors shall hold office until the next election of directors and until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director.

 

3  

 

 

Section 5.          Removal and Resignation of Directors. Subject to the rights of the holders of any series of Preferred Stock then outstanding and notwithstanding any other provision of this Certificate of Incorporation, (i) prior to the first date (the “Trigger Date”) on which HC Group Holdings I, LLC (“HC Group”) and its Affiliated Companies (as defined herein) cease to beneficially own (directly or indirectly) 50% or more of the voting power of the then outstanding shares of capital stock of the Corporation then entitled to vote generally in the election of directors (“Voting Stock”), directors may be removed with or without cause upon the affirmative vote of stockholders representing at least a majority of the voting power of the then outstanding shares of Voting Stock, voting together as a single class and (ii) on and after the Trigger Date, directors may be removed with or without cause upon the affirmative vote of stockholders representing at least sixty-six and two-thirds percent (66⅔%) of the voting power of the then outstanding shares of Voting Stock, at a meeting of the Corporation’s stockholders called for that purpose. Any director may resign at any time upon written notice to the Corporation.

 

Section 6.          Rights of Holders of Preferred Stock. Notwithstanding the provisions of this ARTICLE FIVE, whenever the holders of one or more series of Preferred Stock shall have the right, voting separately or together with the holders of one or more other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and newly created directorships and other features of such directorship shall be subject to the rights of such series of Preferred Stock. During any period when the holders of any series of Preferred Stock, voting separately as a series or together with one or more series, have the right to elect additional directors, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his or her earlier death, resignation, disqualification or removal. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.

 

4  

 

 

Section 7.          Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

 

ARTICLE SIX

 

Section 1.          Limitation of Liability.

 

(a)          To the fullest extent permitted by the DGCL as it now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits the Corporation to provide broader exculpation than permitted prior thereto), no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages arising from a breach of fiduciary duty as a director.

 

(b)          Any amendment, repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such amendment, repeal or modification with respect to any act, omission or other matter occurring prior to such amendment, repeal or modification.

 

ARTICLE SEVEN

 

Section 1.          Action by Written Consent. Prior to the Trigger Date, any action which is required or permitted to be taken by the Corporation’s stockholders may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of the Corporation’s stock entitled to vote thereon were present and voted. From and after the Trigger Date, any action required or permitted to be taken by the Corporation’s stockholders may be taken only at a duly called annual or special meeting of the Corporation’s stockholders and the power of stockholders to consent in writing without a meeting is specifically denied; provided, however, that any action required or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided the resolutions creating such series of Preferred Stock.

 

Section 2.          Special Meetings of Stockholders. Subject to the rights of the holders of any series of Preferred Stock then outstanding and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only (i) by or at the direction of the Board of Directors or the Chairman of the Board of Directors pursuant to a written resolution adopted by the affirmative vote of the majority of the total number of directors that the Corporation would have if there were no vacancies or (ii) prior to the Trigger Date, by the Chairman of the Board of Directors at the written request of the holders of a majority of the voting power of the then outstanding shares of Voting Stock in the manner provided for in the Bylaws. Any business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of the meeting.

 

5  

 

 

ARTICLE EIGHT

 

Section 1.          Certain Acknowledgments. In recognition and anticipation that (i) certain of the directors, partners, principals, officers, members, managers and/or employees of HC Group or its Affiliated Companies (as defined below) may serve as directors or officers of the Corporation and (ii) HC Group and its Affiliated Companies engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) that the Corporation and its Affiliated Companies may engage in material business transactions with HC Group and its Affiliated Companies, and that the Corporation is expected to benefit therefrom, the provisions of this ARTICLE EIGHT are set forth to regulate and define the conduct of certain affairs of the Corporation as they may involve HC Group and/or its Affiliated Companies and/or their respective directors, partners, principals, officers, members, managers and/or employees, including any of the foregoing who serve as officers or directors of the Corporation (collectively, the “Exempted Persons”), and the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith. As used in this Certificate of Incorporation, “Affiliated Companies” shall mean (a) Madison Dearborn Partners, LLC, Madison Dearborn Partners VI-A&C, L.P., Madison Dearborn Partners VI-B, L.P. and MDP Global Investors Limited (collectively, the “MDP Group”), (b) Walgreens Company, (c) any entity that controls, is controlled by or under common control with HC Group, the MDP Group or Walgreens Company (other than the Corporation and any company that is controlled by the Corporation) and any investment funds managed by the MDP Group and (d) in respect of the Corporation, any company controlled by the Corporation.

 

Section 2.          Competition and Corporate Opportunities. To the fullest extent permitted by applicable law, none of the Exempted Persons shall have any fiduciary duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its Affiliated Companies, and no Exempted Person shall be liable to the Corporation or its stockholders for breach of any fiduciary duty solely by reason of any such activities of HC Group, its Affiliated Companies or such Exempted Person. To the fullest extent permitted by applicable law, the Corporation, on behalf of itself and its Affiliated Companies, renounces any interest or expectancy of the Corporation and its Affiliated Companies in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to the Exempted Persons, even if the opportunity is one that the Corporation or its Affiliated Companies might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and each Exempted Person shall have no duty to communicate or offer such business opportunity to the Corporation or its Affiliated Companies and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation, any of its Affiliated Companies or its stockholders for breach of any fiduciary or other duty, as a director, officer or stockholder of the Corporation solely, by reason of the fact that HC Group, its Affiliated Companies or any such Exempted Person pursues or acquires such business opportunity, sells, assigns, transfers or directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or any of its Affiliated Companies. Notwithstanding anything to the contrary in this Section 2, the Corporation does not renounce any interest or expectancy it may have in (i) any business opportunity that is expressly offered to any Exempted Person solely in his or her capacity as a director or officer of the Corporation, and not in any other capacity, or (ii) any business opportunity that any Exempted Person first learns of in his or her capacity as a director or officer of the Corporation.

 

6  

 

 

Section 3.          Certain Matters Deemed Not Corporate Opportunities. In addition to and notwithstanding the foregoing provisions of this ARTICLE EIGHT, a corporate opportunity shall not be deemed to belong to the Corporation if it is a business opportunity the Corporation is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable expectancy.

 

Section 4.          Amendment of this Article. Notwithstanding anything to the contrary elsewhere contained in this Certificate of Incorporation, subject to the rights of the holders of any series of Preferred Stock then outstanding, and in addition to any vote required by applicable law, the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then outstanding shares of Voting Stock, voting together as a single class, shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, this ARTICLE EIGHT; provided however, that, to the fullest extent permitted by law, neither the alteration, amendment or repeal of this ARTICLE EIGHT nor the adoption of any provision of this Certificate of Incorporation inconsistent with this ARTICLE EIGHT shall apply to or have any effect on the liability or alleged liability of any Exempted Person for or with respect to any activities or opportunities which such Exempted Person becomes aware prior to such alteration, amendment, repeal or adoption.

 

Section 5.          Deemed Notice. Any person or entity purchasing or otherwise acquiring or holding any interest in any shares of the Corporation shall be deemed to have notice of and to have consented to the provisions of this ARTICLE EIGHT.

 

ARTICLE NINE

 

Section 1.          Amendments to the Bylaws. Subject to the rights of holders of any series of Preferred Stock then outstanding, in furtherance and not in limitation of the powers conferred by law, prior to the Trigger Date, the Bylaws may be amended, altered or repealed and new bylaws made by (i) the Board of Directors or (ii) in addition to any vote of the holders of any class or series of capital stock of the Corporation required herein (including any resolution or certificate of designations setting forth the terms of any series of Preferred Stock) and any other vote otherwise required by applicable law, the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of Voting Stock, voting together as a single class. On and after the Trigger Date, the Bylaws may be amended, altered or repealed and new bylaws made by (i) the Board or (ii) in addition to any of the holders of any class or series of capital stock of the Corporation required herein (including any certificate of designation relating to any series of Preferred Stock), the Bylaws or applicable law, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of the then outstanding Voting Stock, voting together as a single class.

 

7  

 

 

Section 2.          Amendments to this Certificate of Incorporation. Subject to the rights of holders of any series of Preferred Stock then outstanding, notwithstanding any other provision of this Certificate of Incorporation or the Bylaws, and in addition to any affirmative vote of the holders of any particular class or series of the capital stock required by law or otherwise, no provision of ARTICLE FIVE, ARTICLE SIX, ARTICLE SEVEN, ARTICLE NINE or ARTICLE TEN of this Certificate of Incorporation may be altered, amended or repealed in any respect, nor may any provision of this Certificate of Incorporation or the Bylaws inconsistent therewith be adopted, unless in addition to any other vote required by this Certificate of Incorporation or otherwise required by law, (i) prior to the Trigger Date, such alteration, amendment, repeal or adoption is approved by the affirmative vote of the holders of a majority of the voting power of all outstanding shares of Voting Stock, voting together as a single class, and (ii) from and after the Trigger Date, such alteration, amendment, repeal or adoption is approved by the affirmative vote of holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of all outstanding shares of Voting Stock, voting together as a single class, at a meeting of the Corporation’s stockholders called for that purpose.

 

ARTICLE TEN

 

Section 1.          Exclusive Forum. Unless this Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the United States District Court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, the Certificate of Incorporation or the Bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine.

 

Section 2.          Notice. Any Person purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation (including, without limitation, shares of Common Stock) shall be deemed to have notice of and to have consented to the provisions of this ARTICLE TEN.

 

ARTICLE ELEVEN

 

If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby.

 

8  

 

 

Exhibit 3.2

 

CERTIFICATE OF AMENDMENT TO THE

CERTIFICATE OF DESIGNATIONS

OF

SERIES A CONVERTIBLE PREFERRED STOCK,

PAR VALUE $0.0001 PER SHARE,

OF

BIOSCRIP, INC.

 

BioScrip, Inc., a Delaware corporation (the “Corporation”), hereby certifies as follows:

 

FIRST: The Corporation’s Certificate of Designations of Series A Convertible Preferred Stock, par value $0.0001 per share (the “Series A Certificate of Designations”), which was filed with the Secretary of State of the State of Delaware on March 9, 2015, is hereby amended to add the following new Section 18 thereto:

 

18Redemption; Conversion.

 

(a) Redemption and Conversion at the Option of the Corporation Following Merger. Notwithstanding anything to the contrary set forth herein, immediately following the effectiveness of both the mergers (the “Mergers”) pursuant to and in accordance with the Agreement and Plan of Merger (as amended or modified, the “Merger Agreement”), dated March 14, 2019, by and among the Corporation, Beta Sub, Inc., a Delaware corporation, Beta Sub, LLC, a Delaware limited liability company, HC Group Holdings I, LLC, a Delaware limited liability company, and HC Group Holdings II, Inc., a Delaware corporation (as amended from time to time), a copy of which shall be maintained by the Secretary of the Corporation and provided to any stockholder of the Corporation without charge upon request (the date of the effectiveness of the Mergers, the “Redemption Date”), without any further action on the part of the Corporation or any stockholder thereof, (i) (A) four one-hundredths (4/100) of each share of Series A Preferred Stock issued by the Corporation on March 9, 2015 then issued and outstanding shall automatically be converted into 2.5226 shares of Common Stock and (B) four one-hundredths (4/100) of each share of Series A Preferred Stock issued by the Corporation on July 29, 2015 then issued and outstanding shall automatically be converted into 2.4138 shares of Common Stock and (ii) the remaining portion of all Series A Preferred Stock (constituting ninety-six one-hundredths (96/100) of each share of Series A Preferred Stock subject to conversion pursuant to the immediately preceding clause (i)) shall be redeemed, to the extent of funds lawfully available therefor, for an amount in cash equal to 120% of the Liquidation Preference of such share of Series A Preferred Stock as of the Redemption Date (the “Redemption Price”), in each case in accordance with the terms and conditions set forth in this Section 18. In the event the Redemption Date occurs on a date during a Regular Dividend Period, the Liquidation Preference per share of Series A Preferred Stock shall include Accrued Dividends (in addition to all prior Accrued Dividends) calculated in accordance with Section 3(a)(ii) for such partial period through the Redemption Date. For purposes of the conversion and redemption set forth in this Section 18, each share of Series A Preferred Stock held by each holder thereof shall be aggregated with all other shares of Series A Preferred Stock held by such holder. The Corporation shall not be required to issue any fractional shares of Common Stock resulting from the conversion of a holder’s shares of Series A Preferred Stock as provided hereby, and, in lieu of issuing any such fractional share of Common Stock, the Corporation may pay to the holder thereof cash in amount equal to the fair value (which shall be the last reported sale price of a share of Common Stock on the exchange on which the shares of Common Stock are trading on the most recent day of trading prior to the Redemption Date) of the factional share of Common Stock otherwise issuable to such holder.

 

 

 

  

(b) Notice of Redemption and Conversion Following Merger. As promptly as practicable following the effective time of the Mergers, the Corporation shall give notice (or cause notice to be given) to each holder of Series A Preferred Stock of the conversion and redemption on the Redemption Date of such holder’s shares of Series A Preferred Stock, which notice may include a letter of transmittal in such form as the Corporation determines appropriate for the surrender of the certificate(s) representing the shares of Series A Preferred Stock converted and redeemed pursuant to this Section 18 in exchange for the shares of Common Stock into which such shares of Series A Preferred Stock shall have been converted, and payment of the cash, if any, representing the fair value of any fractional share of Common Stock otherwise issuable to a holder following any such conversion and the aggregate Redemption Price for the shares of Series A Preferred Stock so redeemed. Such notice shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares of Series A Preferred Stock at their respective last addresses appearing on the books of the Corporation. Any notice mailed as provided in this Section 18(b) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock subject to conversion and redemption as provided in Section 18(a) hereof shall not affect the validity or effectiveness of the conversion or redemption of such holder’s shares of Series A Preferred Stock or of any other shares of Series A Preferred Stock so converted and redeemed. Each notice of redemption and conversion given to a holder shall state the place or places where certificates representing shares of Series A Preferred Stock converted and redeemed pursuant to Section 18(a) hereof are to be surrendered in exchange for (x) a certificate representing the aggregate number of whole shares of Common Stock into which such shares of Series A Preferred Stock shall have been converted pursuant to Section 18(a) hereof and (y) payment of cash in an amount equal to the sum of (1) the aggregate Redemption Price for such shares of Series A Preferred Stock plus (2) the fair value of any fractional shares of Common Stock otherwise issuable to such holder as a result of the conversion of such holder’s shares of Series A Preferred Stock into Common Stock. If the certificate(s) representing any shares of Series A Preferred Stock are alleged to have been lost, stolen or destroyed, the holder thereof shall surrender, in lieu of such certificate(s), an affidavit that such certificate(s) have been lost, stolen or destroyed and an indemnity or bond in an amount the Corporation determines to be sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate(s) or the issuance of any new certificate representing the shares of Common Stock into which such shares shall have been converted.

 

 2 

 

  

(c) Effectiveness of Redemption and Conversion. Notwithstanding that any certificate(s) representing shares of Series A Preferred Stock converted and redeemed pursuant to Section 18(a) hereof shall not have not been surrendered for cancellation and exchange, (i) from and after the effectiveness of the conversion of a holder’s shares of Series A Preferred Stock on the Redemption Date, all shares of Series A Preferred Stock held by such holder and so converted shall cease to be outstanding (and shall cease to accrue dividends) and shall be cancelled and retired, and the holder of such shares shall have no further rights with respect to such shares, other than the right to receive the shares of Common Stock into which such shares of Series A Preferred Stock shall have been converted pursuant to Section 18(a) hereof (and payment of cash in an amount equal to the fair value of fractional shares of Common Stock otherwise issuable to such holder upon such conversion), upon compliance with the terms and conditions of this Section 18, and (ii) from and after the redemption of a holder’s shares of Series A Preferred Stock on the Redemption Date, upon the earlier of such time as the Corporation shall have paid or set apart for payment the Redemption Price for such shares, all shares of Series A Preferred Stock held by such holder and so redeemed shall cease to be outstanding (and shall cease to accrue dividends) and shall be cancelled and retired, and the holder of such shares shall have no further rights with respect to such shares, other than the right to receive the Redemption Price thereof, without interest, upon compliance with the terms and conditions of this Section 18. At the time of the conversion and redemption provide by Section 18(a), until surrendered as provided herein, any certificate representing shares of Series A Preferred Stock shall be deemed to represent only the shares of Common Stock into which such shares of Series A Preferred Stock shall have been converted and the right to receive payment of the fair value of any fractional share of Common Stock otherwise issuable upon any such conversion and of the aggregate Redemption Price for such shares of Series A Preferred Stock so redeemed.

 

(c) Matters Regarding the Merger Agreement. In the event of a conflict between this Section 18 and any other section of this Series A Certificate of Designations, this Section 18 shall prevail. Notwithstanding anything to the contrary in this Series A Certificate of Designations, the transactions contemplated by the Merger Agreement shall not constitute a Change of Control, a Liquidation Event or a Deemed Liquidation Event for purposes hereof and shall be permitted without any right, consent, notice, entitlement or other procedural requirement arising out of the transactions contemplated by the Merger Agreement, except as set forth in this Section 18.

 

SECOND: The foregoing amendment was duly adopted by (i) the board of directors of the Corporation in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware and (ii) the affirmative vote of holders representing not less than (a) a majority in voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon and (b) a majority of the outstanding shares of Series A Convertible Preferred Stock, in each case, in accordance with Section 242 of the General Corporation Law of the State of Delaware and the Series A Certificate of Designations.

 

[Signature page follows]

 

 3 

 

   

IN WITNESS WHEREOF, this Certificate of Amendment to Certificate of Designations has been executed by a duly authorized officer of the Corporation as of this 6th day of August, 2019.

 

  BIOSCRIP, INC.
     
  By: /s/ Daniel Greenleaf               
  Name: Daniel Greenleaf
  Title:   President

 

 

 

 

 

Exhibit 3.3

 

 

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIOSCRIP, INC.

 

* * * * *

 

 

BioScrip, Inc., a corporation duly organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

 

First:                      That the present name of the Corporation is BioScrip, Inc. and that the Corporation was originally formed as MIM Corporation, a Delaware corporation, and filed its original Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Secretary of State”) on March 22, 1996. A Third Amended and Restated Certificate of Incorporation was filed with the Secretary of State on August 6, 2019 (the “Certificate of Incorporation”).

 

Second:            That the Certificate of Incorporation of the Corporation be, and hereby is, amended by deleting the article thereof numbered “ARTICLE ONE” in its entirety and substituting in lieu thereof a new article numbered “ARTICLE ONE” to read as follows:

 

The name of the corporation is Option Care Health, Inc. (the “Corporation”).

 

Third:                   That the Board of Directors of the Corporation approved this Certificate of Amendment pursuant to the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

Fourth:           That this Certificate of Amendment shall become effective on August 6, 2019.

 

 

 

 

 

 

IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Certificate of Amendment to the Certificate of Incorporation of the Corporation.

 

BIOSCRIP, INC.,

a Delaware corporation


By: /s/ Clifford E. Berman
Name: Clifford E. Berman
Its: Secretary

 

 

 

  

Exhibit 3.4

 

SECOND AMENDED AND RESTATED BY-LAWS

 

OF

 

OPTION CARE HEALTH, INC.

(a Delaware corporation)

 

Article 1
OFFICES

 

Section 1.1           Offices. The Corporation may have offices at such places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

 

Article 2
MEETINGS OF STOCKHOLDERS

 

Section 2.1           Place of Meeting. Meetings of the stockholders shall be held at such place, within the State of Delaware or elsewhere, as may be fixed from time to time by the Board of Directors. If no place is so fixed for a meeting, it shall be held at the Corporation’s then principal executive office.

 

Section 2.2           Annual Meeting. The annual meeting of stockholders shall be held, unless the Board of Directors shall fix some other hour or date therefor, at 10:00 o’clock A.M. on the third Wednesday of May in each year, if not a legal holiday under the laws of Rhode Island, and, if a legal holiday, then on the next succeeding secular day not a legal holiday under the laws of Rhode Island, at which the stockholders shall elect by plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting.

 

Section 2.3           Notice of Annual Meetings. Written notice of the annual meeting stating the place, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date for determining the stockholders entitled to vote at the meeting, if such record date is different from the record date for determining stockholders entitled to notice of the meeting, shall be given to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting not less than 10 days nor more than 60 days before the date of the meeting.

 

Section 2.4           List of Stockholders. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

 

 

 

 

Section 2.5           Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Chairman or the Vice Chairman and shall be called by the Chief Operating Officer or Secretary at the request in writing of a majority of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the Corporation’s notice.

 

Section 2.6           Notice of Special Meetings. Written notice of a special meeting stating the place, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such record date is different from the record date for determining stockholders entitled to notice of the meeting, and the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting not less than 10 days nor more than 60 days before the date of the meeting.

 

Section 2.7           Quorum; Voting. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the board of directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 7.04 hereof, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. When a quorum is present at any meeting, except for elections of directors, which shall be decided by plurality vote, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of statute or of the Certificate of Incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question. Unless otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no shares shall be voted pursuant to a proxy more than three years after the date of the proxy unless the proxy provides for a longer period.

 

 2 

 

 

Section 2.8           Action Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days after the earliest dated consent delivered in the manner required by this Section to the corporation, written consents signed by a sufficient number of stockholders to take action are delivered in the manner required by this Section to the Corporation. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taking at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders or members to take the action were delivered to the Corporation as provided in this Section 2.08.

 

Section 2.9           Advance Notice of Nominations and Stockholder Business.

 

(a)          Stockholder Business at Annual Meetings of Stockholders.

 

(1)         At an annual meeting of stockholders, only such business (other than nominations of persons for election to the Board of Directors, which must be made in compliance with and is governed exclusively by Section 2.09(c) of these By-Laws) shall be conducted at an annual meeting of the stockholders as shall have been brought before the meeting (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the Corporation who (x) was a stockholder of record at the time of giving of notice provided for in Section 2.09(a)(2) and at the time of the annual meeting, (y) is entitled to vote at the annual meeting and (z) complied with the notice procedures set forth in Section 2.09(a)(2). For the avoidance of doubt, the foregoing clause (iii) of this Section 2.09(a)(1) shall be the exclusive means for a stockholder to propose such business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended) before an annual meeting of stockholders.

 

 3 

 

 

(2)         For business (other than nominations of persons for election to the Board of Directors, which must be made in compliance with and is governed exclusively by Section 2.09(c) of these By-Laws) to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 2.09, the stockholder must have given timely notice thereof in proper written form to the secretary of the Corporation and such business must otherwise be appropriate for stockholder action under the provisions of the laws of Delaware. To be timely, a stockholder’s notice shall be delivered to the secretary at the principal executive offices of the Corporation not less than 90 days and not more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. In no event shall any adjournment, deferral or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above. To be in proper written form, such stockholder’s notice shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting (including the specific text of any resolutions or actions proposed for consideration and if such business includes a proposal to amend the Corporation’s Certificate of Incorporation or these By-Laws, the specific language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, the residence name and address (if different from the Corporation’s books) of such proposing stockholder and any Stockholder Associated Person (defined below) covered by clauses (iii), (iv) and (vi) below, (iii) the class and number of shares of stock of the Corporation which are directly or indirectly held of record or beneficially owned by such stockholder and by any Stockholder Associated Person with respect to the Corporation’s securities, a description of any derivative positions (including, without limitation, any short position, profits interest, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise and any performance-related fees to which such stockholder or any Stockholder Associated Person is entitled based, directly or indirectly, on any increase or decrease in the value of shares of capital stock of the Corporation) held or beneficially held by the stockholder and any Stockholder Associated Person and whether and the extent to which a Hedging Transaction (as defined below) has been entered into by or on behalf of such stockholder or any Stockholder Associated Person, (iv) a description of all arrangements or understandings between such stockholder or any Stockholder Associated Person and any other person or entity (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder or any Stockholder Associated Person or such other person or entity in such business, (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting, and (vi) a representation as to whether such stockholder or any Stockholder Associated Person intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding shares required to approve the proposal and/or otherwise to solicit proxies from stockholders in support of the proposal. In addition, any stockholder who submits a notice pursuant to this Section 2.09(a) is required to update and supplement the information disclosed in such notice, if necessary, in accordance with Section 2.09(d)(2). “Hedging Transaction” means, with respect to a stockholder or any Stockholder Associated Person, any hedging or other transaction (such as borrowed or loaned shares) or series of transactions, or any other agreement, arrangement or understanding, the effect or intent of which is to increase or decrease the voting power of such stockholder or any Stockholder Associated Person with respect to the Corporation’s securities. “Stockholder Associated Person” of any stockholder means (x) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (y) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder or (z) any person directly or indirectly controlling, controlled by or under common control with such Stockholder Associated Person.

 

 4 

 

 

(b)          Stockholder Business at Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.

 

(c)          Director Nominations.

 

(1)         Except for directors who are elected by the Board of Directors pursuant to the provisions of Section 3.02 of these By-Laws, only persons shall be eligible for election to the Board of Directors who are nominated in accordance with the procedures set forth in this Section 2.09(c).

 

(2)         Nominations of persons for election to the Board of Directors may be made at an annual meeting of stockholders only (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who (x) was a stockholder of record at the time of giving of notice provided for in Section 2.09(c)(3) and at the time of the annual meeting, (y) is entitled to vote at the annual meeting and (z) complied with the notice procedures set forth in Section 2.09(c)(3). For the avoidance of doubt, clause (ii) of this Section 2.09(c)(2) shall be the exclusive means for a stockholder to make nominations of persons for election to the Board of Directors at an annual meeting of stockholders.

 

 5 

 

 

(3)         To be timely, a stockholder’s notice referred to in Section 2.09(c)(2) must have been delivered in proper written form to the secretary of the Corporation at the principal executive offices of the Corporation not less than 90 days and not more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. In no event shall any adjournment, deferral or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above. To be in proper written form, such stockholder’s notice shall set forth (i) as to each person whom the stockholder proposes to nominate for election or re-election to the Board of Directors, (a) the name, age, business address and residence address of the person, (b) the principal occupation or employment of the person, (c) the class or series and number of shares of capital stock of the Corporation which are directly or indirectly owned beneficially or of record by the person, (d) the date such shares were acquired and the investment intent of such acquisition, and (e) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for a contested election of directors (even if an election contest or proxy solicitation is not involved), or is otherwise required, pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving if elected); and (ii) as to the stockholder giving the notice (u) the name and address of such stockholder, as they appear on the Corporation’s books, the residence name and address (if different from the Corporation’s books) of such proposing stockholder and any Stockholder Associated Person covered by clauses (v), (w), (y) and (z) below, (v) the class and number of shares of stock of the Corporation which are directly or indirectly held of record or beneficially owned by such stockholder and by any Stockholder Associated Person with respect to the Corporation’s securities, a description of any derivative positions (including, without limitation, any short position, profits interest, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise and any performance-related fees to which such stockholder or any Stockholder Associated Person is entitled based, directly or indirectly, on any increase or decrease in the value of shares of capital stock of the Corporation) held or beneficially held by the stockholder and any Stockholder Associated Person and whether and the extent to which a Hedging Transaction has been entered into by or on behalf of such stockholder or any Stockholder Associated Person, (w) a description of all arrangements or understandings between such stockholder or any Stockholder Associated Person and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (x) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice, (y) any other information relating to such stockholder or any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for a contested election of directors (even if an election contest or proxy solicitation is not involved), or is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (z) a representation as to whether such stockholder or any Stockholder Associated Person intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination and/or otherwise to solicit proxies from stockholders in support of the nomination. In addition, any stockholder who submits a notice pursuant to this Section 2.09(c)(3) is required to update and supplement the information disclosed in such notice, if necessary, in accordance with Section 2.09(d)(2).

 

 6 

 

 

(4)         Notwithstanding anything in the first sentence of paragraph (c)(3) of this Section 2.09 to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by paragraph (c)(3) of this Section 2.09 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

 

(5)         Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who (x) was a stockholder of record at the time of giving of notice provided for in Section 2.09(c)(6) and at the time of the special meeting, (y) is entitled to vote at the special meeting and (z) complied with the notice procedures set forth in Section 2.09(c)(6). For the avoidance of doubt, the foregoing clause (ii) of this Section 2.09(c)(5) shall be the exclusive means for a stockholder to propose nominations of persons for election to the Board of Directors at a special meeting of stockholders.

 

(6)         Any nominations by stockholders at a special meeting of stockholders pursuant to Section 2.09(c)(5) must be made pursuant to timely notice in proper written form as described in this Section 2.09(c)(6) to the secretary of the Corporation. To be timely, a stockholder’s notice referred to in Section 2.09(c)(5) must have been delivered in proper written form to the secretary of the Corporation at the principal executive offices of the Corporation not earlier than the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the day on which public announcement is made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall any adjournment, deferral or postponement of a special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above. To be in proper written form, such stockholder’s notice shall set forth all of the information required by, and otherwise be in compliance with, the third sentence of paragraph (c)(3) of this Section 2.09. In addition, any stockholder who submits a notice pursuant to this Section 2.09(c)(6) is required to update and supplement the information disclosed in such notice, if necessary, in accordance with Section 2.09(d)(2).

 

(d)          General.

 

(1)         Except for directors who are elected by the Board of Directors pursuant to the provisions of Section 3.02 of these By-Laws, only such persons who are nominated in accordance and compliance with the procedures set forth in Section 2.09(c) of these By-Laws shall be eligible for election to the Board of Directors at a meeting of stockholders and only such other business (other than nominations of persons for election to the Board of Directors, which is governed exclusively by Section 2.09(c) of these By-Laws) shall be conducted at an annual meeting of stockholders as shall have been brought before the annual meeting in accordance with the procedures set forth in Section 2.09(a). The presiding officer of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before an annual or special meeting was made in accordance with the procedures set forth in this Section 2.09 and, if any proposed nomination or business is not in compliance with this Section 2.09, to declare that such defective nomination or proposal be disregarded.

 

 7 

 

 

(2)         Any stockholder who submits a notice of proposal for business or nomination for election pursuant to this Section 2.09 is required to update and supplement the information disclosed in such notice, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for providing notice of the meeting of stockholders and as of the date that is ten (10) business days prior to such meeting of the stockholders or any adjournment or postponement thereof, and such update and supplement shall be delivered to the secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date for providing notice of the meeting of stockholders (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting of stockholders or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting of stockholders or any adjournment or postponement thereof).

 

(3)         For purposes of this Section 2.09, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press, Business Wire, PR Newswire or comparable news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14, or 15(d) of the Exchange Act.

 

(4)         Notwithstanding the foregoing provisions of this Section 2.09, a stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.09; provided, however, that any references in these By-Laws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 2.09(a), (b) and (c) of these By-Laws. Nothing in this Section 2.09 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

 

Article 3
DIRECTORS

 

Section 3.1           Number and Term of Office. The number of directors of the Corporation shall be such number as shall be designated from time to time by resolution of the Board of Directors and initially shall be two. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.02 hereof. Each director elected shall hold office for a term of one year and shall serve until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders.

 

 8 

 

 

Section 3.2           Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10 percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.

 

Section 3.3           Resignations. Any director may resign at any time by giving written notice to the Board of Directors, the Chairman, the Chief Operating Officer, the Secretary or any Assistant Secretary. Such resignation shall take effect at the time of receipt thereof or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 3.4           Direction of Management. The business of the Corporation shall be managed under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.

 

Section 3.5           Place of Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.

 

Section 3.6           Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by the Board.

 

Section 3.7           Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, the Vice Chairman or the Chief Executive Officer on 2 days’ notice to each director; either personally (including telephone), or in the manner specified in Section 4.01; special meetings shall be called by the Chairman, the Vice Chairman or the Secretary in like manner and on like notice on the written request of two directors.

 

Section 3.8           Quorum; Voting. At all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business; and at all meetings of any committee of the Board, a majority of the members of such committee shall constitute a quorum for the transaction of business. The act of a majority of the directors present at any meeting of the Board of Directors or any committee thereof at which there is a quorum present shall be the act of the Board of Directors or such committee, as the case may be, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors or committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

 9 

 

 

Section 3.9           Action Without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

 

Section 3.10         Participation in Meetings. One or more directors may participate in any meeting of the Board or committee thereof by means of conference telephone or similar communications equipment by which all persons participating can hear each other.

 

Section 3.11         Committees of Directors. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution, shall have and may exercise all of the powers and authority of the Board of Directors and may authorize the seal of the Corporation to be affixed to all papers which may require it, but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution providing for the issuance of shares of stock adopted by the Board of Directors, fix any preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws of the Corporation; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when requested.

 

Section 3.12         Compensation of Directors. Each director shall be entitled to receive such compensation, if any, as may from time to time be fixed by the Board of Directors. Members of special or standing committees may be allowed like compensation for attending committee meetings. Directors may also be reimbursed by the Corporation for all reasonable expenses incurred in traveling to and from the place of each meeting of the Board or of any such committee or otherwise incurred in the performance of their duties as directors. No payment referred to herein shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

 10 

 

 

Article 4
NOTICES

 

Section 4.1           Notices. Whenever, under the provisions of law or of the Certificate of Incorporation or of these By-Laws, notice is required to be given to any director or stockholder, such requirement shall not be construed to necessitate personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, cable, telecopy or telex or by delivering a writing in a sealed wrapper prepaid to a courier service guaranteeing delivery within 2 business days, in each case addressed to such director or stockholder, at his address as it appears on the records of the Corporation in the case of a stockholder and at his business address (unless he shall have filed a written request with the Secretary that notices be directed to a different address) in the case of a director. Such notice shall be deemed to be given at the time it is so dispatched.

 

Section 4.2           Waiver of Notice. Whenever, under the provisions of law or of the Certificate of Incorporation or of these By-Laws, notice is required to be given, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent thereto. Neither the business nor the purpose of any meeting need be specified in such a waiver.

 

Article 5
OFFICERS

 

Section 5.1           Number. The officers of the Corporation shall be a Chief Executive Officer, a Secretary and a Treasurer, and may also include a Chairman, Vice Chairman, one or more Executive Vice Presidents and/or Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be elected by the Board of Directors. Any number of offices may be held by the same person.

 

Section 5.2           Election and Term of Office. The officers of the Corporation shall be elected by the Board of Directors at its first meeting following the annual meeting of stockholders. Officers shall hold office at the pleasure of the Board.

 

Section 5.3           Removal. Any officer may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.

 

Section 5.4           Chairman and Vice Chairman.

 

(a)          The Chairman, if there is one, shall preside at all meetings of the Board of Directors and of the stockholders and shall perform such other duties, if any, as may be specified by the Board from time to time.

 

(b)          The Vice Chairman, if there is one, shall preside at all meetings of the Board of Directors and of the stockholders in the absence of the Chairman, and shall perform such other duties, if any, as may be specified by the Board from time to time.

 

 11 

 

 

Section 5.5           Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation and shall have overall responsibility for the management of the business and operations of the Corporation and shall see that all orders and resolutions of the Board are carried into effect. In the absence of the Chairman and the Vice Chairman, he shall preside over meetings of the Board of Directors and of the stockholders of the Corporation. In general, he shall perform all duties incident to the office of Chief Executive Officer, and such other duties as from time to time may be assigned to him by the Board.

 

Section 5.6           Executive Vice Presidents and Vice Presidents. The Executive Vice Presidents and Vice Presidents shall perform such duties and have such authority as may be specified in these By-Laws or by the Board of Directors or the Chief Executive Officer.

 

Section 5.7           Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the stockholders and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President. He shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument, and when so affixed it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

 

Section 5.8           Assistant Secretaries. The Assistant Secretary or Secretaries shall, in the absence or disability of the Secretary, perform the duties and exercise the authority of the Secretary and shall perform such other duties and have such other authority as the Board of Directors or the Chief Executive Officer may from time to time prescribe.

 

Section 5.9           Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the Chief Executive Officer or the Chief Financial Officer, taking proper vouchers for such disbursements, and shall render to the Board of Directors when the Board so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

 

Section 5.10         Assistant Treasurers. The Assistant Treasurer or Treasurers shall, in the absence or disability of the Treasurer, perform the duties and exercise the authority of the Treasurer and shall perform such other duties and have such other authority as the Board of Directors may from time to time prescribe.

 

 12 

 

 

Article 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Section 6.1           Indemnification. Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving while a director or officer of the Corporation at the request of the Corporation as a director, officer, employee, agent, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the Corporation against expenses (including attorneys’ fees), judgments, fines, excise taxes and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the full extent permissible under Delaware law.

 

Section 6.2           Advances. Any person claiming indemnification within the scope of Section 6.01 shall be entitled to advances from the Corporation for payment of the expenses of defending actions against such person in the manner and to the full extent permissible under Delaware law.

 

Section 6.3           Procedure. On the request of any person requesting indemnification under Section 6.01, the Board of Directors or a committee thereof shall determine whether such indemnification is permissible or such determination shall be made by independent legal counsel if the Board or committee so directs or if the Board or committee is not empowered by statute to make such determination.

 

Section 6.4           Other Rights. The indemnification and advancement of expenses provided by this Article 6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any insurance or other agreement, vote of shareholders or disinterested directors or otherwise, both as to actions in their official capacity and as to actions in another capacity while holding an office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.

 

Section 6.5           Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, agent, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these By-laws.

 

Section 6.6           Modification. The duties of the Corporation to indemnify and to advance expenses to a director or officer provided in this Article 6 shall be in the nature of a contract between the Corporation and each such director or officer, and no amendment or repeal of any provision of this Article 6 shall alter, to the detriment of such director or officer, the right of such person to the advancement of expenses or indemnification related to a claim based on an act or failure to act which took place prior to such amendment, repeal or termination.

 

 13 

 

 

Article 7
CERTIFICATES OF STOCK

 

Section 7.1           Stock Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate in the form prescribed by the Board of Directors signed on behalf of the Corporation by the Chairman or Vice Chairman or Chief Executive Officer or Chief Operating Officer or an Executive Vice President or Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares owned by him in the Corporation. Any or all signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

Section 7.2           Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

 

Section 7.3           Transfers of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

Section 7.4           Fixing Record Date. The Board of Directors of the Corporation may fix a record date for the purpose of determining the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or to consent to corporate action in writing without a meeting, or to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action. Such record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and such record date shall not be (i) in the case of such a meeting of stockholders, more than 60 nor less than 10 days before the date of the meeting of stockholders, or (ii) in the case of consents in writing without a meeting, more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors, or (iii) in other cases, more than 60 days prior to the payment or allotment or change, conversion or exchange or other action. If the board of directors fixes a record date to determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 7.04 at the adjourned meeting.

 

 14 

 

 

Section 7.5           Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of stock to receive dividends and to vote as such owner, and shall be entitled to hold liable for calls and assessments a person registered on its books as the owner of stock, and shall not be bound to recognize any equitable or other claim to, or interest in, such stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

 

Article 8
Certain governance matters

 

Section 8.1           Definitions. The following definitions shall apply to this Article 8:

 

(a)          “Closing” means the closing of those certain mergers described in the Merger Agreement.

 

(b)          “Closing Date” means the date on which the Closing occurs.

 

(c)          “First Merger Effective Time” means the effective time of the merger of HC Group Holdings II, Inc. with Beta Sub, Inc., a wholly-owned subsidiary of the Corporation, pursuant to the terms and conditions of the Merger Agreement.

 

(d)          “Merger Agreement” means that certain Agreement and Plan of Merger, dated as of March 14, 2019, by and among the Corporation, Beta Sub, Inc,, Beta Sub, LLC, HC Group Holdings I, LLC, HC Group Holdings II, Inc. and HC Group Holdings III, Inc.

 

(e)          “Next Annual Meeting” means the first annual meeting of the stockholders held following the Closing Date.

 

Section 8.2           Composition of the Board. Notwithstanding the provisions of Article 3, at the First Merger Effective Time, the Corporation shall cause the Board of Directors to consist of R. Carter Pate, David W. Golding, Timothy Sullivan, Elizabeth Q. Betten, Nitin Sahney, Harry M. Jansen Kraemer, Jr., John J. Arlotta, John Rademacher, Mark Vainisi and Alan Nielsen, in each case to hold office from and after the First Merger Effective Time until the earliest to occur of the appointment or election of his or her respective successor, resignation or proper removal in accordance with applicable legal requirements. After the First Merger Effective Time, the Corporation shall cause each of R. Carter Pate and David W. Golding (together, the “Continuing Directors”) to be included in the slate of nominees recommended by the Board of Directors to the stockholders for election as directors at the Next Annual Meeting and shall use no less rigorous efforts to solicit proxies in favor of the Continuing Directors than the manner in which the Corporation supports all other nominees proposed by the Board of Directors.

 

 15 

 

 

Section 8.3           Vacancies. Notwithstanding the provisions of Article 3, if, following the Closing, any Continuing Director resigns or is unable to serve for any other reason prior to the first anniversary following the Next Annual Meeting (in each case, a “Removed Designee”), then, in each case, the remaining Continuing Director (if any) shall recommend a replacement for such Removed Designee to the Governance, Compliance and Nominating Committee of the Board of Directors, which shall consider such replacement (and, if not approved by such committee, any additional replacements recommended by the remaining Continuing Director) in good faith.

 

Section 8.4           Amendments. Notwithstanding anything to the contrary set forth in these By-Laws, prior to the first anniversary of the Next Annual Meeting, the provisions of this Article 8 may only be modified, amended or repealed, and any provision of these By-Laws or other resolution inconsistent with this Article 8 may only be adopted, by an affirmative vote of no less than 85% of the total number of the directors on the Board of Directors at the time of such determination. Prior to the first anniversary of the Next Annual Meeting, in the event of any inconsistency between any other provision of these By-Laws and any provision of this Article 8, the provisions of this Article 8 shall govern and control.

 

Article 9
AMENDMENTS

 

Section 9.1           Amendments. These By-Laws may be altered, amended or repealed, and new By-Laws may be adopted, by the stockholders or by the Board of Directors at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such special meeting.

 

 16 

 

 

 

Exhibit 4.1

 

Execution Version

 

  

HC GROUP HOLDINGS II, LLC

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

 

BIOSCRIP, INC.

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

 

THE SUBSIDIARY ISSUERS AND GUARANTORS PARTY HERETO FROM TIME TO TIME

 

AND

 

ANKURA TRUST COMPANY, LLC

as Trustee and Collateral Agent

 

SENIOR SECURED SECOND LIEN PIK TOGGLE FLOATING RATE NOTES DUE 2027

 

 

INDENTURE

 

Dated as of August 6, 2019

  

 

 

 

 

Table of Contents

 

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

 

 i

 

 

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

 

 ii

 

 

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

 

 iii

 

 

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

 

 iv

 

 

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

 

 v

 

 

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

 

EXHIBITS:

 

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

 

SCHEDULES:

 

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

  

 vi

 

 

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

 

WITNESSETH:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

ARTICLE I.

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01         Definitions.

 

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

 

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 2 

 

 

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

 

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

 

 3 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 4 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Canadian Dollars” means the lawful currency of Canada.

 

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (subject to Section 1.03).

 

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

 

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

 

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

 

 5 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 6 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Change of Control” shall be deemed to occur if:

 

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

 

 7 

 

 

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

 

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

 

Clearstream” means Clearstream Banking, S.A.

 

Closing Date” means August 6, 2019.

 

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

 

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

 

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

 

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

 

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

 

 8 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 9 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 10 

 

 

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

 

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

 

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

 

(f)           Transaction Expenses,

 

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

 

(h)          costs associated with obtaining Swap Contracts,

 

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

 

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

 

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

 

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

 

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

 

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

 

 11 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 12 

 

 

(viii)      [reserved]; plus

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 13 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 14 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 15 

 

 

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

 

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

 

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

 

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

 

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

 

(r)           the following items shall be excluded:

 

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

 

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

 

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

 

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

 

 16 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 17 

 

 

(b)          to advance or supply funds

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 18 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 19 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 20 

 

 

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

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

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

 

 21 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 22 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 23 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 24 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)          all Attributable Indebtedness;

 

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

 

 25 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 26 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Investment Grade Securities” means:

 

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

 

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

 

 27 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 28 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 29 

 

 

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

 

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

 

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

 

Maturity Date” means August 6, 2027.

 

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

 

 30 

 

 

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

 

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

 

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

 

 31 

 

 

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

 

Net Proceeds” means:

 

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

 

 32 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

Note Party” means each Issuer and each Guarantor.

 

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

 

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

 

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

 

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

 

 33 

 

 

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

 

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

 

OID” means original issue discount.

 

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

 

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

 

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

 

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

 

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

 

 34 

 

 

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

 

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

 

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

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

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

 

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

 

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

 

Permitted Investments” means:

 

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

 

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

 

 35 

 

 

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

 

(i)          such Person becomes a Restricted Subsidiary; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 36 

 

 

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

 

(8)          distributions or payments of Securitization Fees;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 37 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 38 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 39 

 

 

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

 

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

 

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

 

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

 

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

 

 40 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 41 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 42 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

Required Holders” means Holders holding the Required Amount.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 43 

 

 

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

 

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

 

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

 

S&P” means Standard & Poor’s Ratings Services, a subsidiary of S&P Global Inc., and any successor thereto.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 44 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 45 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

 46 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

Threshold Amount” means $62,500,000.

 

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

 

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

 

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

 

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

 

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

 

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

 

 47 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Yen” means the lawful currency of Japan.

 

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

 

 48 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 49 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 50 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 51 

 

 

Section 1.08         Pro Forma Calculations.

 

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

 

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

 

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

 

 52 

 

 

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

 

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

 

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

 

 53 

 

 

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

 

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

 

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

 

 54 

 

 

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

 

Section 1.11          Other Definitions.

 

Term

Defined in

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

 

 55 

 

  

Term

Defined in

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

 

 56 

 

  

Term

Defined in

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

 

 57 

 

 

ARTICLE II.

 

THE NOTES

 

Section 2.01         Form and Dating.

 

(a)          General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be issued in minimum denominations of $1.00 and any integral multiples of $1.00 in excess thereof. The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuers, the Guarantors, the Trustee and the Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

(b)          Global Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Increases or Decreases in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and PIK Payments. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with Section 2.06(h) (or, in the case of any increase resulting from a PIK Payment, in accordance with the applicable provisions of this Indenture (including Section 2.01(e)) and the Notes).

 

(c)          [reserved]

 

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

 

 58 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 59 

 

 

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

 

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

 

Section 2.05         Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Parent Issuer shall furnish, or cause the Registrar to furnish, to the Trustee in writing at least three Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders and the Parent Issuer.

 

Section 2.06         Transfer and Exchange.

 

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

 

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

 

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

 

 60 

 

 

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

 

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

 

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

 

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

 

(A)         both:

 

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

 

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

 

(B)         both:

 

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

 

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

 

provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Global Note prior to (A) the expiration of the applicable Restricted Period and (B) the receipt by the Registrar of any certification of Beneficial Ownership required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act and in the form of Exhibit B or Exhibit C, as applicable, hereto. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).

 

 61 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

(B)          the Registrar receives the following:

 

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

 

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

 

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

 

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

 

 62 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 63 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 64 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 65 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 66 

 

 

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

 

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

 

(f)           [Reserved].

 

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

 

(1)          Private Placement Legend.

 

(A)         Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend (the “Private Placement Legend”) in substantially the following form:

 

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

 

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

 

 67 

 

 

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

 

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

 

(2)          Global Note Legend. Each Global Note will bear a legend in substantially the following form (with appropriate changes in the last sentence if DTC is not the Depositary):

 

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

 

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

 

 68 

 

 

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

 

(3)          [reserved]

 

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

 

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

 

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

 

(i)           General Provisions Relating to Transfers and Exchanges.

 

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

 

(2)          No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Parent Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.09, 3.23, 3.24, 3.25, 5.06 or 9.05 or the penultimate paragraph of Section 2.02).

 

(3)          Neither the Registrar, the Trustee nor any Issuer shall be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

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

 

 69 

 

 

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

 

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

 

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

 

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

 

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

 

(10)        [Reserved].

 

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

 

 70 

 

 

Section 2.07         Mutilated, Destroyed, Lost or Stolen Notes.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 71 

 

 

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

 

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

 

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

 

Section 2.11         Payment of Interest; Defaulted Interest.

 

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

 

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

 

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

 

 72 

 

 

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

 

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

 

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

 

Section 2.13         Additional Issuers.

 

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

 

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

 

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

 

 73 

 

 

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

 

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

 

ARTICLE III.

 

AFFIRMATIVE COVENANTS

 

Section 3.01         Financial Statements

 

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

 

 74 

 

 

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

 

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

 

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

 

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

 

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

 

 75 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 76 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 77 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 78 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 79 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 80 

 

 

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

 

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

 

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

 

Section 3.23         Change of Control

 

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

 

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

 

 81 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 82 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 83 

 

 

Section 3.24         Offer to Purchase by Application of Net Proceeds.

 

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

 

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

 

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

 

 84 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 85 

 

 

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

 

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

 

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

 

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

 

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

 

 86 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 87 

 

 

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

 

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

 

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

 

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

 

ARTICLE IV.

 

NEGATIVE COVENANTS