Form 8-K
8-K — B&G Foods, Inc.
Accession: 0001104659-26-072323
Filed: 2026-06-10
Period: 2026-06-10
CIK: 0001278027
SIC: 2000 (FOOD & KINDRED PRODUCTS)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — tm2617391d1_8k.htm (Primary)
EX-4.1 — EXHIBIT 4.1 - INDENTURE DATED AS OF JUNE 10, 2026 (tm2617391d1_ex4-1.htm)
EX-99.1 — EXHIBIT 99.1 - PRESS RELEASE DATED JUNE 10, 2026 (tm2617391d1_ex99-1.htm)
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8-K (Primary)
Filename: tm2617391d1_8k.htm · Sequence: 1
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2026-06-10
2026-06-10
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As filed with the Securities and Exchange Commission on June 10, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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):
June 10, 2026
B&G Foods, Inc.
(Exact name of Registrant as specified in its charter)
Delaware
001-32316
13-3918742
(State or Other Jurisdiction
(Commission
(IRS Employer
of Incorporation)
File Number)
Identification No.)
8
Sylvan Way, Parsippany, New
Jersey
07054
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including
area code: (973) 401-6500
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class
Trading Symbol
Name of each exchange on which registered
Common Stock, par value $0.01 per share
BGS
New York Stock Exchange
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. ¨
Item 1.01. Entry into a Material Definitive Agreement.
Item 2.03. Creation of a Direct Financial Obligation.
Closing of Senior Notes Offering. On June
10, 2026, B&G Foods issued a press release announcing the closing of our private offering of $475.0 million aggregate principal amount
of 11.00% senior notes due 2031 in a transaction exempt from registration under the Securities Act of 1933, as amended. The senior notes
were issued at a price of 97.67% of their face value.
We intend to use the net proceeds of the offering,
together with borrowings under our revolving credit facility and cash on hand, to redeem all $509.3 million aggregate principal amount
of our outstanding 5.25% senior notes due 2027 and pay related fees and expenses.
The 11.00% senior notes due 2031 and the related
guarantees have not been and will not be registered under the Securities Act, any state securities laws or the securities laws of any
other jurisdiction and the 11.00% senior notes due 2031 and the related guarantees may not be offered or sold in the United States absent
registration or an applicable exemption from the registration requirements of the Securities Act and applicable securities laws of any
state or other jurisdiction.
This current report does not constitute a redemption
notice with respect to the 5.25% senior notes due 2027 and shall not constitute an offer to sell or a solicitation of an offer to buy
the 11.00% senior notes due 2031 and the related guarantees, nor shall there be any sale of the 11.00% senior notes due 2031 and the related
guarantees in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or jurisdiction.
On June 10, 2026, B&G Foods entered into an
indenture among B&G Foods, certain subsidiaries of B&G Foods as guarantors, and The Bank of New York Mellon Trust Company, N.A.,
as trustee, relating to the 11.00% senior notes due 2031.
Interest on the 11.00% senior notes due 2031 is
payable on June 15 and December 15 of each year, commencing December 15, 2026, to holders of record on the immediately preceding June
1 and December 1. The 11.00% senior notes due 2031 will mature on June 15, 2031, unless earlier retired or redeemed as described below.
We may redeem some or all of the 11.00% senior notes due 2031 at a
redemption price of 105.500% on or after June 15, 2028, 102.750% on or after June 15, 2029 and 100.000% on or after June 15, 2030, in
each case plus accrued and unpaid interest to (but not including) the date of redemption. We may redeem up to 40% of the aggregate principal
amount of the 11.00% senior notes due 2031 prior to June 15, 2028 at a redemption price of 111.00% plus accrued and unpaid interest to
(but not including) the date of redemption with the net proceeds from certain equity offerings. We may also redeem some or all of the
11.00% senior notes due 2031 at any time prior to June 15, 2028 at a redemption price equal to the “make-whole amount” set
forth in the indenture plus accrued and unpaid interest to (but not including) the date of redemption. In addition, if B&G Foods undergoes
a change of control, we may be required to offer to repurchase the 11.00% senior notes due 2031 at 101.000% of the aggregate principal
amount, plus accrued and unpaid interest to (but not including) the date of repurchase.
- 2 -
The 11.00% senior notes due 2031 are our unsecured
senior obligations and are jointly and severally and fully and unconditionally guaranteed on an unsecured senior basis by each of our
existing and future domestic subsidiaries (other than immaterial subsidiaries). The 11.00% senior notes due 2031 and the subsidiary guarantees
are our and the guarantors’ general unsecured obligations and are effectively junior in right of payment to all of our and the guarantors’
secured indebtedness and to all existing and future indebtedness and other liabilities of our non-guarantor subsidiaries; are pari
passu in right of payment to all of our and the guarantors’ existing and future unsecured senior debt; and are senior in right
of payment to all of our and the guarantors’ future subordinated debt. Our foreign subsidiaries are not guarantors, and any future
foreign or partially owned domestic subsidiaries will not be guarantors, of the 11.00% senior notes due 2031.
The indenture governing the 11.00% senior notes
due 2031 contains covenants with respect to us and the guarantors and restricts the incurrence of additional indebtedness and the issuance
of capital stock; the payment of dividends or distributions on, and redemption of, capital stock; a number of other restricted payments,
including certain investments; creation of certain liens; certain sale-leaseback transactions; and certain asset sales; fundamental changes,
including consolidation, mergers and transfers of all or substantially all of our assets; and specified transactions with affiliates.
Each of the covenants is subject to a number of important exceptions and qualifications. Further, the indenture provides for customary
events of default, which include, among others, nonpayment of principal or interest, breach of other agreements in the indenture, failure
to pay certain other indebtedness, failure of certain guarantees to be enforceable, failure to pay certain final judgments, and certain
events of bankruptcy or insolvency.
The description above is only a summary of the
material provisions of the indenture and the 11.00% senior notes due 2031, and is qualified in its entirety by reference to the full text
of the indenture and the 11.00% senior notes due 2031, which are filed as Exhibits 4.1 and 4.2, respectively, to this report and are incorporated
herein by reference.
A copy of the press release announcing the closing
of the offering is attached to this report as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
4.1
Indenture, dated as of June 10, 2026, among B&G Foods, Inc., the Guarantors (as defined therein), and The Bank of New York Mellon Trust Company, N.A., as trustee, relating to the 11.00% senior notes due 2031
4.2
Form of 11.00% senior notes due 2031 (included in Exhibit 4.1)
99.1
Press Release dated June 10, 2026
104
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL
- 3 -
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 hereunto
duly authorized.
B&G FOODS, INC.
Dated: June 10, 2026
By:
/s/ Scott E. Lerner
Scott E. Lerner
Executive Vice President,
General Counsel and Secretary
- 4 -
EX-4.1 — EXHIBIT 4.1 - INDENTURE DATED AS OF JUNE 10, 2026
EX-4.1
Filename: tm2617391d1_ex4-1.htm · Sequence: 2
Exhibit 4.1
Execution Version
B&G FOODS, INC.
and each
of the Guarantors PARTY HERETO
11.00% SENIOR NOTES DUE 2031
INDENTURE
Dated as of June 10, 2026
The Bank of New York Mellon Trust Company, N.A.
Trustee
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Section 1.01
Definitions
1
Section 1.02
Other Definitions
25
Section 1.03
Rules of Construction
26
ARTICLE 2
THE
NOTES
Section 2.01
Form and Dating
28
Section 2.02
Execution and Authentication
29
Section 2.03
Registrar and Paying Agent
30
Section 2.04
Paying Agent to Hold Money in Trust
30
Section 2.05
Holder Lists
30
Section 2.06
Transfer and Exchange
31
Section 2.07
Replacement Notes
33
Section 2.08
Outstanding Notes
33
Section 2.09
Treasury Notes
34
Section 2.10
Temporary Notes
34
Section 2.11
Cancellation
34
Section 2.12
Defaulted Interest
34
Section 2.13
CUSIP Numbers
35
Section 2.14
Special Transfer Provisions
35
Section 2.15
Issuance of Additional Notes
36
ARTICLE 3
REDEMPTION
AND PREPAYMENT
Section 3.01
Notices to Trustee
37
Section 3.02
Selection of Notes to Be Redeemed or Purchased
37
Section 3.03
Notice of Redemption
37
Section 3.04
Effect of Notice of Redemption
38
Section 3.05
Deposit of Redemption or Purchase Price
38
Section 3.06
Notes Redeemed or Purchased in Part
39
Section 3.07
Optional Redemption
39
Section 3.08
Mandatory Redemption
40
Section 3.09
Offer to Purchase by Application of Excess Proceeds
40
ARTICLE 4
COVENANTS
Section 4.01
Payment of Notes
42
Section 4.02
Maintenance of Office or Agency
42
Section 4.03
Reports
43
Section 4.04
Compliance Certificate
45
Section 4.05
[Reserved]
45
Section 4.06
[Reserved]
45
Section 4.07
Restricted Payments
45
Section 4.08
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
48
Section 4.09
Incurrence of Indebtedness and Issuance of Preferred Stock
50
i
Section 4.10
Asset Sales
54
Section 4.11
Transactions with Affiliates
56
Section 4.12
Liens
57
Section 4.13
Business Activities
58
Section 4.14
[Reserved]
58
Section 4.15
Offer to Repurchase Upon Change of Control
58
Section 4.16
[Reserved]
59
Section 4.17
Limitation on Sale and Leaseback Transactions
59
Section 4.18
[Reserved]
59
Section 4.19
Additional Note Guarantees
59
Section 4.20
Designation of Restricted and Unrestricted Subsidiaries
59
Section 4.21
Effectiveness of Covenants
60
ARTICLE 5
SUCCESSORS
Section 5.01
Merger, Consolidation, or Sale of Assets
61
Section 5.02
Successor Corporation Substituted
62
ARTICLE 6
DEFAULTS
AND REMEDIES
Section 6.01
Events of Default
63
Section 6.02
Acceleration
66
Section 6.03
Other Remedies
66
Section 6.04
Waiver of Past Defaults
66
Section 6.05
Control by Majority
66
Section 6.06
Limitation on Suits
66
Section 6.07
Rights of Holders to Receive Payment
67
Section 6.08
Collection Suit by Trustee
67
Section 6.09
Trustee May File Proofs of Claim
67
Section 6.10
Priorities
68
Section 6.11
Undertaking for Costs
68
ARTICLE 7
TRUSTEE
Section 7.01
Duties of Trustee
69
Section 7.02
Rights of Trustee
70
Section 7.03
Individual Rights of Trustee
70
Section 7.04
Trustee’s Disclaimer
71
Section 7.05
Notice of Defaults
71
Section 7.06
[Reserved]
71
Section 7.07
Compensation and Indemnity
71
Section 7.08
Replacement of Trustee
72
Section 7.09
Successor Trustee by Merger, etc.
73
Section 7.10
Eligibility; Disqualification
73
Section 7.11
[Reserved]
73
ARTICLE 8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance
73
Section 8.02
Legal Defeasance and Discharge
73
Section 8.03
Covenant Defeasance
74
ii
Section 8.04
Conditions to Legal or Covenant
Defeasance
74
Section 8.05
Deposited Money and Government
Securities to be Held in Trust; Other Miscellaneous
Provisions
75
Section 8.06
Repayment to Company
76
Section 8.07
Reinstatement
76
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Without Consent of Holders
76
Section 9.02
With Consent of Holders
77
Section 9.03
[Reserved]
79
Section 9.04
Revocation and Effect of Consents
79
Section 9.05
Notation on or Exchange of Notes
79
Section 9.06
Trustee to Sign Amendments, etc.
79
ARTICLE 10
[Reserved]
ARTICLE 11
NOTE GUARANTEES
Section 11.01
Guarantee
79
Section 11.02
Limitation on Guarantor Liability
80
Section 11.03
Execution and Delivery of Note Guarantee
81
Section 11.04
Guarantors May Consolidate, etc., on Certain Terms
81
Section 11.05
Releases
82
ARTICLE 12
Satisfaction and Discharge
Section 12.01
Satisfaction and Discharge
83
Section 12.02
Application of Trust Money
84
ARTICLE 13
MISCELLANEOUS
Section 13.01
[Reserved]
84
Section 13.02
Notices
85
Section 13.03
[Reserved]
86
Section 13.04
Certificate and Opinion as to Conditions Precedent
86
Section 13.05
Statements Required in Certificate or Opinion
87
Section 13.06
Rules by Trustee and Agents
87
Section 13.07
No Personal Liability of Directors, Officers, Employees,
Affiliates and Stockholders
87
Section 13.08
Governing Law
87
Section 13.09
No Adverse Interpretation of Other Agreements
87
Section 13.10
Successors
87
Section 13.11
Severability
88
Section 13.12
Counterpart Originals
88
Section 13.13
Table of Contents, Headings, etc.
88
Section 13.14
Waiver of Jury Trial
88
Section 13.15
Force Majeure
88
Section 13.16
Consent to Jurisdiction
88
Section 13.17
Foreign Account Tax Compliance Act (FATCA)
89
iii
EXHIBITS
Exhibit A
FORM OF NOTE
Exhibit B
FORM OF NOTATION OF GUARANTEE
Exhibit C
FORM OF SUPPLEMENTAL INDENTURE
Exhibit D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A
Exhibit E
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
iv
INDENTURE dated June 10,
2026 among B&G Foods, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined) and The Bank
of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee
(the “Trustee”).
WHEREAS, the Company has duly
authorized the issuance of $475,000,000 aggregate principal amount of its 11.00% Senior Notes due 2031 on the Issue Date (the “Initial
Notes”). The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined below) of the Notes (as defined below).
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.
“2027 Notes”
means B&G Foods 5.25% Senior Notes due 2027.
“2027
Notes Indenture” means the indenture relating to the 2027 Notes dated September 26, 2019, as amended or supplemented from
time to time.
“2028 Notes”
means B&G Foods 8.00% Senior Secured Notes due 2028.
“2028 Notes Indenture”
means the indenture relating to the 2028 Notes dated September 26, 2023, as amended or supplemented from time to time.
“Acquired Debt”
means, with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether
or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person,
provided that the amount of Acquired Debt
only at the time so acquired will include the accreted value together with any interest thereon that is more than 30 days past due; provided,
further, that Indebtedness of such other Person that is redeemed, defeased, retired or otherwise repaid at the time, or immediately
upon consummation, of the transaction by which such other Person is merged with or into or became a Restricted Subsidiary of such Person
will not be Acquired Debt.
“Additional Notes”
means Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.02 and 2.15 hereof, as part of the
same series as the Initial Notes.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled
by” and “under common control with” have correlative meanings.
1
“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.
“Applicable Premium”
means, with respect to any Notes on any redemption date, the greater of:
(1) 1.0% of
the principal amount of the Notes; or
(2) the excess
of:
(a) the
present value at such redemption date of (i) the redemption price of the Notes at June 15, 2028, (such redemption price being
set forth in the table in Section 3.07 hereof) plus (ii) all required interest payments due on the Notes through June 15,
2028, (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of
such redemption date plus 50 basis points; over
(b) the
principal amount of the Notes.
“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.
“Asset Sale”
means:
(1) the sale,
lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Section 4.15
hereof and/or Section 5.01 hereof and not Section 4.10 hereof; and
(2) the issuance
or sale of Equity Interests in any of the Company’s Restricted Subsidiaries (other than directors’ qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary).
Notwithstanding the preceding, none of the following
items will be deemed to be an Asset Sale:
(1) any
single transaction or series of related transactions that involves (a) assets having a Fair Market Value of less than $5.0 million
or (b) Net Proceeds of less than $5.0 million;
(2) a
transfer of assets between or among the Company and its Restricted Subsidiaries;
(3) an
issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;
(4) the
sale, lease, conveyance or other disposition of products, services, inventory, equipment or accounts receivable in the ordinary course
of business, including any sale or other disposition of damaged, worn-out, obsolete, negligible or surplus assets in the ordinary course
of business;
(5) the
sale or other disposition of cash or Cash Equivalents;
(6) the
surrender or waiver of contract rights, the settlement, release or surrender of contract, tort or other litigation claims in the ordinary
course of business, and the granting of (or permitted realization of) Liens not prohibited by this Indenture;
(7) a
Restricted Payment that complies with Section 4.07 hereof or a Permitted Investment;
2
(8) sales
or grants of licenses or sublicenses of Intellectual Property, and licenses, leases or subleases of other assets, of the Company or any
of its Restricted Subsidiaries to the extent not materially interfering with the business of the Company and its Restricted Subsidiaries;
(9) any
exchange of like-kind property pursuant to Section 1031 of the Code that is used or useful in a Permitted Business;
(10) the
abandonment of Intellectual Property rights in the ordinary course of business, which in the reasonable good faith determination of the
Company or any of its Restricted Subsidiaries are not material to the conduct of the business of the Company and its Restricted Subsidiaries
taken as a whole;
(11) foreclosures,
condemnation or any similar action on assets or the granting of a Lien that is permitted under Section 4.12 hereof;
(12) any
liquidation or dissolution of a Restricted Subsidiary, provided that such Restricted Subsidiary’s direct parent is also either the
Company or a Restricted Subsidiary of the Company and immediately becomes the owner of such Restricted Subsidiary’s assets;
(13) any
issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(14) any
financing transaction with respect to real property constructed, acquired, replaced, repaired or improved (including any reconstruction,
refurbishment, renovation and/or development of real property) by the Company or any Restricted Subsidiary after the date of this Indenture,
including sale and lease-back transactions permitted by this Indenture; and
(15) sales,
transfers and other dispositions of Investments in joint ventures to the extent required by customary buy/sell arrangements between the
joint venture parties as set forth in joint venture agreements.
“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for
which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if
such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined
in accordance with the definition of “Capital Lease Obligation.”
“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person”
will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms
“Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.
3
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with
respect to a partnership, the board of directors of the general partner of the partnership;
(3) with
respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with
respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day”
means any day other than a Legal Holiday.
“Capital Lease Obligation”
means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the
lessee without payment of a penalty. Capital Lease Obligation shall exclude all operating lease and non-finance lease liabilities that
are required to be capitalized and reflected as liabilities in the balance sheet in accordance with GAAP.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership interests or membership interests (whether general or limited); and
(4) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.
“Cash Equivalents”
means:
(1) United
States dollars and Canadian dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States
government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities
of not more than one year from the date of acquisition;
(3) certificates
of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances
with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;
4
(4) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications specified in clause (3) above;
(5) commercial
paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after
the date of acquisition;
(6) money
market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of
this definition; and
(7) readily
marketable direct obligations issued by any State of the United States of America or any political subdivision thereof having maturities
of not more than one year from the date of acquisition and having one of the two highest rating categories obtainable from either Moody’s
or S&P.
“Certificated Note”
means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“Change of Control”
means the occurrence of any of the following:
(1) the
direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a
whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Restricted Subsidiary;
(2) the
adoption of a plan relating to the liquidation or dissolution of the Company; or
(3) the
consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person”
(as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured
by voting power rather than number of shares.
“Clearstream”
means Clearstream Banking, S.A.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Company”
means B&G Foods, Inc. and any and all successors thereto.
“Consolidated EBITDA”
means with respect to any specified Person for any period, Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) consolidated interest expense of such Person and its Restricted Subsidiaries,
amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill)
and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary
course of business), (f) the amount of any non-cash compensation deduction as the result of any potential grant of Capital Stock
or other Equity Interests to employees, officers, directors or consultants and (g) any other non-cash charges, and minus, to the
extent included in the statement of such Consolidated Net Income for such period, the sum of (a) interest income (except to the extent
deducted in determining consolidated interest expense), (b) any extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the
sales of assets outside of the ordinary course of business), and (c) any other non-cash income, all as determined on a consolidated
basis.
5
“Consolidated Net
Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:
(1) the
Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(2) the
Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income to such Person and its Restricted Subsidiaries is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or indirectly, by 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;
(3) the
cumulative effect of a change in accounting principles will be excluded;
(4) any
unrealized gains and losses with respect to Hedging Obligations for such period will be excluded;
(5) any
unrealized gains and losses related to fluctuations in currency exchange rates for such period will be excluded;
(6) any
gains and losses from any early extinguishment of Indebtedness will be excluded;
(7) any
gains and losses from any redemption or repurchase premiums paid with respect to the Notes will be excluded; and
(8) any
deferred financing costs (including the amortization of original issue discount) associated with Indebtedness of the Company will be excluded.
“Consolidated Secured
Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Secured Debt on such day to (b) Consolidated
EBITDA of the Company and its Restricted Subsidiaries for such period, calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption
of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, Consolidated Secured Leverage Ratio will be determined with such pro forma adjustments as are consistent
with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
6
“Consolidated Total
Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Debt on such day to (b) Consolidated
EBITDA of the Company and its Restricted Subsidiaries for such period, calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption
of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, Consolidated Total Leverage Ratio will be determined with such pro forma adjustments as are consistent
with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
“continuing”
means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“Copyright Licenses”
means all written agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives
a license or similar right in, to, or under any Copyright, or otherwise providing for a covenant not to sue for infringement or other
violation of any Copyright.
“Copyrights”
means all United States and foreign copyrights, whether registered or unregistered and whether published or unpublished, and (i) all
registrations and applications therefor, (ii) all extensions and the right to obtain all renewals thereof, (iii) the right to
sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all proceeds of the foregoing,
including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or
payable with respect thereto, and (v) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.
“Corporate Trust
Office of the Trustee” will be at the address of the Trustee specified in Section 13.02 hereof or such other address as
to which the Trustee may give notice to the Company.
“Credit Agreement”
means that certain Amended and Restated Credit Agreement, dated as of October 2, 2015, by and among the Company, Barclays Bank PLC,
as administrative agent and collateral agent, and the lenders from time to time party thereto, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified,
renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales
of debt securities to institutional investors) in whole or in part from time to time, including by that certain First Amendment to the
Credit Agreement, dated as of March 30, 2017, that certain Second Amendment to the Credit Agreement, dated as of November 20,
2017, that certain Third Amendment to the Credit Agreement dated as of October 10, 2019, that certain Fourth Amendment to the Credit
Agreement dated as of December 16, 2020, that certain Fifth Amendment to the Credit Agreement dated as of June 28, 2022, that
certain Sixth Amendment to the Credit Agreement, dated as of June 6, 2023, that certain Seventh Amendment to the Credit Agreement,
dated as of September 22, 2023, that certain Eighth Amendment to the Credit Agreement, dated as of July 12, 2024 and that certain
Ninth Amendment to the Credit Agreement, dated as of July 1, 2025.
“Credit
Agreement Obligations” has the meaning assigned to the term “Obligations” in the Credit Agreement, together with
any Permitted Refinancing Indebtedness thereof.
“Credit Facilities”
means, one or more debt facilities (including, without limitation, the Credit Agreement) or other financing arrangements (including, without
limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, receivables financing (including
through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables),
letters of credit or other long-term indebtedness including any notes, mortgages, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or replacements
in any manner (whether upon or after termination or otherwise) or refinancings thereof (including by means of sales of debt securities
to institutional investors) in whole or in part from time to time and any debt facilities or other financing arrangements (including,
without limitation, commercial paper facilities or indentures) that replace, refund or refinance any part of the loans, notes, other credit
facilities or commitments thereunder including any such replacement, refunding or refinancing facility or indenture that increases the
amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase is permitted under Section 4.09
hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender
or group of lenders.
7
“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Default”
means any event that is, or with the passage of time or the giving of written notice or both would be, an Event of Default.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
“Derivative Instrument”
means, with respect to a Person, any contract, instrument or other right to receive payment or delivery of cash or other assets to which
such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment
in the Notes (other than a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or
cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the
creditworthiness of the Company and/or any one or more of the Guarantors (the “Performance References”).
“Designated Non-cash
Consideration” means the Fair Market Value of non-cash consideration received by the Company or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth
the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or Cash Equivalents received
in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable,
in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part,
on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the
terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless
such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified Stock deemed to be outstanding at any
time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
8
“Domestic Subsidiaries”
means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or
the District of Columbia.
“Electronic Means”
shall mean the following communications methods: S.W.I.F.T., e-mail, secure electronic transmission containing applicable authorization
codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for
use in connection with its services hereunder.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“Equity Offering”
means a public or private sale either (1) of Equity Interests of the Company by the Company (other than Disqualified Stock and other
than to a Subsidiary of the Company or pursuant to a registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company) or (2) of Equity Interests of a direct or indirect parent entity of the
Company (other than to the Company or a Subsidiary of the Company) to the extent that the net proceeds therefrom are contributed to the
common equity capital of the Company.
“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“Excess Cash”
means, with respect to any specified Person for any period, the Consolidated EBITDA of that Person for such period, minus the sum
of the following, each determined for such period on a consolidated basis:
(1) cash
income taxes paid for such Person and its Restricted Subsidiaries; plus
(2) cash
interest expense paid by such Person and its Restricted Subsidiaries, whether or not capitalized (including, without limitation, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect
of all payments made or received pursuant to Hedging Obligations in respect of interest rates); plus
(3) additions
to property, plant and equipment and other capital expenditures of such Person and its Restricted Subsidiaries that are (or would be)
set forth in a consolidated statement of cash flows of such Person and its Restricted Subsidiaries for such period prepared in accordance
with GAAP, except to the extent financed by the incurrence of Indebtedness; plus
(4) the
aggregate principal amount of long-term Indebtedness repaid by such Person and its Restricted Subsidiaries and the repayment by such Person
and any Restricted Subsidiary of any short-term Indebtedness that financed capital expenditures referred to in clause (3) above,
excluding any such repayments (a) under working capital facilities (except to the extent that such Indebtedness so repaid was incurred
to finance capital expenditures as described in clause (3) above), (b) out of Net Proceeds of Asset Sales as provided
in Section 3.09 hereof, (c) through a refinancing involving the incurrence of new long-term Indebtedness and (d) to the
extent not included in clause (c), of the redemption of a portion or all of the outstanding 2027 Notes with the proceeds of the offering
of the Notes on or about the date of this Indenture; provided that the aggregate amount of repayments made pursuant to this clause
(d) does not exceed the amount of the net proceeds received in connection with the offering of the Notes.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
9
“Existing Indebtedness”
means Indebtedness of the Company and its Restricted Subsidiaries in existence on the date hereof, other than the Notes and Indebtedness
under the Credit Agreement outstanding immediately following the execution of this Indenture (but including, for the avoidance of doubt,
the Existing Notes).
“Existing Notes”
means the 2027 Notes and the 2028 Notes, collectively.
“Fair Market Value”
means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by the Company (unless otherwise provided in this Indenture).
“Fixed Charge Coverage
Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated EBITDA of such Person for such
period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro
forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness,
or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed
Charge Coverage Ratio:
(1) acquisitions
that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any
Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any
related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred
on the first day of the four-quarter reference period, and Consolidated EBITDA for such reference period will be calculated on a pro forma
basis (including with respect to any cost savings so long as such cost savings are factually supportable and expected to have a continuing
effect on such Person or any of its Restricted Subsidiaries);
(2) the
Consolidated EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the
Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation
Date;
(4) any
Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during
such four-quarter period;
10
(5) any
Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time
during such four-quarter period; and
(6) if
any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect
on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months).
“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without
limitation, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations in respect of interest rates (but excluding amortization of deferred financing costs, original
issue discount and any redemption or repurchase premiums paid with respect to the Notes); plus
(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
(3) any
interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien
on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(4) the
product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person
or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator
of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP; minus
(5) charges
attributable to the amortization of expenses relating to the Transactions incurred within 180 days of the date of this Indenture.
“Foreign
Subsidiary” means any Subsidiary of the Company that is not a Domestic Subsidiary.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States,
which are in effect on the date of this Indenture. Notwithstanding the foregoing, all leases and obligations under any leases of any Person
that are or would be characterized as operating leases and/or operating lease obligations in accordance with GAAP on January 1, 2018
(whether or not such operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for
as operating leases and/or operating lease obligations (and not as Capital Lease Obligations) for purposes of this Indenture regardless
of any change in GAAP following the date that would otherwise require such obligations to be recharacterized as Capital Lease Obligations.
At any time after the date hereof, the Company may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election,
references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein); provided that calculations
or determinations herein that require the application of GAAP for periods that include fiscal quarters ended prior to the Company’s
election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company will provide notice of
any such election made in accordance with this definition to the Trustee and the Holders.
11
“Global Note Legend”
means the legend identified as such in Exhibit A, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes”
means, individually and collectively, each of the 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 Article 2.
“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of America (including any agency or instrumentality thereof)
for the payment of which obligations or guarantees the full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the option of the Company and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on
any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depository receipt.
“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for collection or standard contractual indemnities in the ordinary
course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial
statement conditions or otherwise).
“Guarantors”
means each of:
(1) B&G
Foods North America, Inc., B&G Foods Snacks, Inc., Bear Creek Country Kitchens, LLC, Clabber Girl Corporation, Spartan Foods
of America, Inc., Victoria Fine Foods, LLC and William Underwood Company; and
(2) any
other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture,
and their respective successors and assigns, in
each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
12
“Hedging Obligations”
means, with respect to any specified Person, the obligations of such Person under:
(1) interest
rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other
agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other
agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
“Holder”
means a Person in whose name a Note is registered.
“IFRS”
means International Financial Reporting Standards.
“Immaterial Subsidiary”
means, as of any date, any Restricted Subsidiary whose total assets, as of that date, are less than $100,000 and whose total revenues
for the most recent 12-month period do not exceed $100,000; provided that a Restricted Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of
the Company.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether
or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5) representing
the balance deferred and unpaid of the purchase price of any property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title thereto, except any such balance that constitutes an accrued
expense or trade payable or any similar obligation to trade creditors; or
(6) representing
any Hedging Obligations,
if and to the extent any of the preceding items
(other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured
by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person; provided that
if the holder of such Indebtedness has no recourse to such Person other than to the asset, the amount of such Indebtedness will be deemed
to equal the lesser of the value of such asset and the amount of the obligation so secured) and, to the extent not otherwise included,
the Guarantee by the specified Person of any Indebtedness of any other Person.
“Intellectual Property”
means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses, the Patents,
the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all rights to sue at
law or in equity or otherwise recover for any past, present and future infringement, dilution, misappropriation or other violation or
impairment thereof, including the right to receive all proceeds therefrom, including without limitation license fees, royalties, income,
payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.
13
“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 an equivalent rating by any other Rating Agency.
“Investments”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital contributions (excluding accounts receivable, trade credit and
advances to customers in the ordinary course of business and commission, travel and similar advances to officers and employees made in
the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company will
be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s
Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07(c) hereof.
The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person will not be deemed
to be an Investment by the Company or such Subsidiary in such third Person if the purpose of such acquisition by the Company or such Subsidiary
was not the Investment in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined
at the time the Investment is made and without giving effect to subsequent changes in value.
“Issue Date”
means June 10, 2026.
“Joint Venture”
means any joint venture between the Company and/or any Restricted Subsidiary and any other Person if such joint venture is:
(1) owned
50% or less by the Company and/or any of its Restricted Subsidiaries; and
(2) not
directly or indirectly controlled by or under direct or indirect common control of the Company and/or any of its Restricted Subsidiaries.
“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement relating to a lien on an asset under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction.
14
“Limited Condition
Transaction” means (1) any Investment or acquisition (whether by merger, consolidation or otherwise), whose consummation
is not conditioned on the availability of, or on obtaining, third-party financing, (2) any redemption, repurchase, defeasance, satisfaction
and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction
and discharge or repayment and (3) any dividends or distributions on, or redemptions of, Capital Stock requiring irrevocable notice
in advance thereof.
“Long Derivative
Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations
under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases,
and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“Material Intellectual
Property” means intellectual property owned by the Company or any Restricted Subsidiary that is material to the business of
the Company and its Restricted Subsidiaries, taken as a whole.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income”
means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction
in respect of preferred stock dividends, excluding, however:
(1) any
gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with:
(a) any
Asset Sale; or
(b) the
disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person
or any of its Restricted Subsidiaries; and
(2) any
extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain (but not loss).
“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale,
in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required
to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets
that were the subject of such Asset Sale or any reserve for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP or in respect of liabilities associated with the asset disposed of and retained by the Company or its Restricted
Subsidiaries.
“Net Short”
means, with respect to a holder or beneficial owner of Notes, as of a date of determination, either (i) the value of its Short Derivative
Instruments exceeds the sum of (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date
of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit
Event (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives Definitions) to have
occurred with respect to the Company or any Guarantor immediately prior to such date of determination.
15
“Non-Recourse Debt”
means Indebtedness:
(1) as
to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or
(c) constitutes the lender;
(2) no
default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of
its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated
or payable prior to its Stated Maturity; and
(3) as
to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
“Note Guarantee”
means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
“Notes”
means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any, shall be treated as a single class
for all purposes under this Indenture; provided that if any Additional Notes subsequently issued are not fungible with any Notes previously
issued for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number. Unless the context otherwise requires,
all references to the Notes shall include the Initial Notes and any Additional Notes.
“Obligations”
means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Executive Vice-President or any
Vice-President of such Person.
“Officers’
Certificate” means a certificate signed by two Officers of a Person that complies with Sections 13.04 and 13.05 of this Indenture
and is delivered to the Trustee.
“OID Legend”
means the legend identified as such in Exhibit A.
“Opinion of Counsel”
means an opinion from legal counsel that meets the requirements of Section 13.05 hereof. The counsel may be an employee of or counsel
to the Company or any Subsidiary of the Company.
“Pari
Passu Obligations” means all Credit Agreement Obligations and any other Indebtedness of the Company or any Guarantor that is
equal in right of payment with the Notes or the Guarantee of such Guarantor, as applicable.
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“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).
“Patent License”
means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives a license
or similar right in, to, or under any Patent, or otherwise providing for a covenant not to sue for infringement or other violation of
any Patent.
“Patents”
means all United States and foreign patents and certificates of invention or similar industrial property rights, and applications for
any of the foregoing, including (i) each patent and patent application, (ii) all reissues and extensions thereof, (iii) all
divisions, continuations and continuations-in-part thereof, (iv) all patentable inventions and improvements thereto, (v) the
right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (vi) all proceeds of
the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or
hereafter due and/or payable with respect thereto and (vii) all other rights of any kind accruing thereunder or pertaining thereto
throughout the world.
“Permitted Business”
means the business of the Company and its Subsidiaries as existing on the date hereof and any other businesses that are the same, similar
or reasonably related, ancillary or complementary thereto and reasonable extensions thereof.
“Permitted Investments”
means:
(1) any
Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any
Investment in Cash Equivalents;
(3) any
Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary of the Company; or
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company;
(4) any
Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with
Section 4.10 hereof;
(5) any
acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the
Company;
(6) any
Investments received (a) in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (ii) litigation, arbitration or other
disputes with Persons who are not Affiliates; or (b) in satisfaction of judgments;
(7) Investments
represented by Hedging Obligations;
17
(8) loans
or advances to directors, officers, employees and consultants made in the ordinary course of business of the Company or the Restricted
Subsidiary of the Company in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;
(9) repurchases
of the Notes;
(10) intercompany
loans to the extent permitted by Section 4.09 hereof;
(11) loans
by the Company in an aggregate principal amount not exceeding $5.0 million to employees of the Company or its Restricted Subsidiaries
to finance the sale of the Company’s Capital Stock by the Company to such employees; provided that the net cash proceeds
from such sales respecting such loaned amounts will not be included in the calculation described in clause (b) of the second paragraph
of Section 4.07(a) hereof;
(12) any
Investment in existence on the date hereof;
(13) receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms;
(14) any
Investment in any Person to the extent the Investment consists of prepaid expenses, negotiable instruments held for collection and lease,
utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Company
or any of its Restricted Subsidiaries;
(15) Guarantees
of Obligations of the Company and its Restricted Subsidiaries otherwise permitted by the terms of this Indenture, including guarantees
of Indebtedness, performance guarantees and guarantees of operating leases or other obligations that do not constitute Indebtedness; and
(16) other
Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (16) that are
at the time outstanding, not to exceed the greater of (i) $125.0 million or (ii) 4.0% of Total Assets at the time of such
Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes
in value); provided that if an Investment made pursuant to this clause (16) is made in any Person that is not a Restricted
Subsidiary of the Company at the date of the making of the Investment and such Person becomes a Restricted Subsidiary after such date,
such Investment will thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant
to this clause (16).
Notwithstanding anything to
the contrary set forth in this Indenture, the Company will not and will not permit any Restricted Subsidiary to, directly or indirectly
transfer, convey, sell, lease or otherwise dispose of any Material Intellectual Property to any Unrestricted Subsidiary, any Restricted
Subsidiary that is not a Guarantor or any joint venture or similar arrangement in which the Company or any Restricted Subsidiary holds
less than a controlling interest (other than, in each case, with respect to non-exclusive licenses in the ordinary course of business).
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“Permitted
Liens” means:
(1) Liens
on assets of the Company or any of its Restricted Subsidiaries securing Indebtedness and other Obligations incurred pursuant to Section 4.09(b)(1) and/or
securing certain Hedging Obligations;
(2) Liens
in favor of the Company or the Guarantors;
(3) Liens
on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Subsidiary of
the Company; provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the Company or the Subsidiary;
(4) Liens
on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company;
provided that such Liens were not incurred in contemplation of, such acquisition;
(5) Liens
to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, deposits to secure the performance of bids,
trade contracts, government contracts, warranty requirements, leases or licenses or other obligations of a like nature or incurred in
the ordinary course of business (including, without limitation, landlord Liens on leased real property and rights of offset and set-off);
(6) Liens
to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4) of this Indenture; covering only
the assets acquired with or financed by such Indebtedness;
(7) Liens
existing on the date hereof;
(8) Liens
for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required
in conformity with GAAP has been made therefor;
(9) Liens
imposed by law, such as carriers’, warehousemen’s, landlord’s, materialmen’s, repairmen’s and mechanics’
Liens, in each case, incurred in the ordinary course of business;
(10) survey
exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection
with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their
use in the operation of the business of such Person;
(11) Liens
created for the benefit of the holders of (or to secure) the Notes (or the Note Guarantees), other than Additional Notes (or the Note
Guarantees thereof);
(12) Liens
to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided, however, that:
(a) the
new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof);
and
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(b) the
Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount,
or, if greater, committed amount, of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged with such Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
(13) Liens
in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary
course of business and other similar Liens arising in the ordinary course of business;
(14) Liens
securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;
(15) Liens
upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods;
(16) leases
or subleases granted to third Persons not interfering with the ordinary course of business of the Company or any of its Restricted Subsidiaries;
(17) Liens
(other than any Lien imposed by ERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment insurance, and other types of social security;
(18) deposits
made in the ordinary course of business to secure liability to insurance carriers;
(19) Liens
under licensing agreements for use of Intellectual Property entered into in the ordinary course of business;
(20) judgment
Liens not giving rise to an Event of Default;
(21) Liens
on the assets of a Restricted Subsidiary of the Company that is not a Guarantor securing Indebtedness of that Restricted Subsidiary; provided
that such Indebtedness was permitted to be incurred under Section 4.09 hereof;
(22) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business;
(23) Liens
solely on any cash earnest money deposits made by the Company or any of its Restricted Subsidiaries in connection with any letter of intent
or purchase agreement permitted under this Indenture;
20
(24) Liens
arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases entered into in the
ordinary course of business; and
(25) Liens
incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with respect to obligations that
do not exceed $30.0 million at any one time outstanding.
“Permitted Refinancing
Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest
on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness has a final maturity date later than or the same as the final maturity date of, and has a Weighted
Average Life to Maturity that is (a) equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged or (b) more than 90 days after the final maturity date of the Notes;
(3) if
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right
of payment to, the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged.
“Person”
means any individual, corporation, limited liability company, joint stock company, joint venture, partnership, limited liability partnership,
association, unincorporated organization, trust, governmental regulatory entity, country, state, agency or political subdivision thereof,
municipality, county, parish or other entity.
“Rating Agencies”
means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally
recognized statistical rating organization or organizations, as the case may be, selected by the Company which shall be substituted for
Moody’s or S&P or both, as the case may be.
“Resale Restriction
Termination Date” means for any Transfer Restricted Note (or beneficial interest therein), that is (a) not a Regulation
S Global Note (or Certificated Note issued in respect thereof pursuant to Section 2.06(b) hereof), one year (or such other period
specified in Rule 144(d)) from the Issue Date or, if any Additional Notes that are Transfer Restricted Notes and are not Regulation
S Global Notes have been issued before the Resale Restriction Termination Date for any Transfer Restricted Notes, from the latest such
original issue date of such Additional Notes, and (b) a Regulation S Global Note (or Certificated Note issued in respect thereof
pursuant to Section 2.06(b) hereof), the date on or after the 40th consecutive day beginning on and including the
later of (i) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation
S) pursuant to Regulation S and (ii) the issue date for such Notes.
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“Responsible Officer,”
when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
“Restricted Cash”
means cash and Cash Equivalents held by a Subsidiary that is contractually restricted from being distributed to the Company; provided,
that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed
to the Company shall not deemed to be “Restricted Cash” as a result of such restriction.
“Restricted Investment”
means an Investment other than a Permitted Investment.
“Restricted Notes
Legend” means the legend identified as such in Exhibit A.
“Restricted Subsidiary”
of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
“S&P”
means S&P Global Ratings, and any successor to its rating agency business.
“Screened Affiliate”
means any Affiliate of a holder of Notes or, if the holder is DTC or DTC’s nominee, of a beneficial owner of Notes, (i) that
makes investment decisions independently from such holder or beneficial owner and any other Affiliate of such holder that is not a Screened
Affiliate, (ii) that has in place customary information screens between it and such holder or beneficial owner and any other Affiliate
of such holder or beneficial owner that is not a Screened Affiliate and such screens prohibit the sharing of information with respect
to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such holder or beneficial owner or any other
Affiliate of such holder or beneficial owner that is acting in concert with such holder in connection with its investment in the Notes
and (iv) whose investment decisions are not influenced by the investment decisions of such holder or beneficial owner or any other
Affiliate of such holder or beneficial owner of Notes that is acting in concert with such holders or beneficial owners in connection with
its investment in the Notes.
“SEC” means
the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Short Derivative
Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations
under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases,
and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“Significant Subsidiary”
means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
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“Stated Maturity”
means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest
or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date hereof, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment
thereof.
“Subsidiary”
means, with respect to any specified Person:
(1) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any
partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Total Assets”
means the total assets of the Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet
of the Company.
“Total Debt”
means as at any date of determination, the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries
on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capital Lease Obligations and debt obligations
evidenced by promissory notes and similar instruments, in each case determined in accordance with GAAP less the aggregate amount of cash
and Cash Equivalents of the Company and its Restricted Subsidiaries at such date that is not Restricted Cash; provided that Total Debt
shall not include Indebtedness in respect of any notes or other debt securities that have been defeased or satisfied and discharged in
accordance with the applicable indenture or with respect to which the required deposit has been made in connection with a call for repurchase
or redemption to occur within the time period set forth in the applicable indenture, in each case to the extent such transactions are
permitted by the applicable indenture.
“Total Secured Debt”
means, as of any date of determination, Total Debt other than any Total Debt that is unsecured and/or has been subordinated to the Obligations.
“Trade
Secret Licenses” means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor
grants or receives a license or similar right in, to, or under any Trade Secret.
“Trade Secrets”
means all trade secrets and all other confidential or proprietary information that derive independent economic value, actual or potential,
from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (i) the
right to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all proceeds
of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now
or hereafter due and/or payable with respect thereto; and (iii) all other rights of any kind accruing thereunder or pertaining thereto
throughout the world.
“Trademark
License” means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants
or receives a license or similar right in, to, or under any Trademark or otherwise providing for a covenant not to sue for infringement,
dilution, or other violation of any Trademark.
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“Trademarks”
means all United States, and foreign trademarks, trade names, trade dress, corporate names, company names, business names, fictitious
business names, Internet domain names, trade styles, service marks, logos and other source or business identifiers and designs, now
existing or hereafter adopted or acquired, whether or not registered, and with respect to any and all of the foregoing: (i) all registration
and applications therefore, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business
connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present
and future infringement, dilution or other violation of any of the foregoing or for any injury to the related goodwill, (v) all proceeds
of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now
or hereafter due and/or payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or pertaining thereto
throughout the world.
“Transactions”
means the issuance of the Notes and the application of the proceeds therefrom.
“Transfer
Restricted Notes” means Notes that bear or are required to bear the Restricted Notes Legend.
“Treasury Rate”
means, with respect to any redemption of the Notes, the yield to maturity as of the earlier of (a) the redemption date or (b) the
date on which the Notes are defeased or satisfied and discharged, of United States Treasury securities with a constant maturity (as compiled
and published in the most recent Selected Interest Rates (Daily) H.15 release that has become publicly available at least two business
days prior to such date (or, if such release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from such date to June 15, 2028; provided, however, that if the period from such date to June 15,
2028, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity
of one year will be used.
“Trustee”
means The Bank of New York Mellon Trust Company, N.A. until a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
“Unrestricted Subsidiary”
means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant
to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) has
no Indebtedness other than Non-Recourse Debt;
(2) except
as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the
Company;
(3) is
a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and
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(4) has
not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of
the Board of Directors of such Person.
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the
sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect of the Indebtedness, 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
(2) the
then outstanding principal amount of such Indebtedness.
Section 1.02 Other Definitions.
Term
Defined in
Section
“Affiliate Transaction”
4.11
“Agent Members”
2.06(a)
“Applicable Law”
13.17
“Asset Sale Offer”
3.09
“Authentication Order”
2.02
“Authorized Officers”
13.02
“Change of Control Offer”
4.15
“Change of Control Payment”
4.15
“Change of Control Payment Date”
4.15
“Covenant Defeasance”
8.03
“Directing Holder”
6.01
“DTC”
2.03
“Event of Default”
6.01
“Excess Proceeds”
4.10
“incur”
4.09
“Instructions”
13.02
“LCT Election”
1.03(12)
“LCT Test Date”
1.03(12)
“Legal Defeasance”
8.02
“Noteholder Direction”
6.01
“Offer Amount”
3.09
“Offer Period”
3.09
“Paying Agent”
2.03
“Payment Default”
6.01
“Permitted Debt”
4.09
“Position Representation”
6.01
“Purchase Date”
3.09
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Term
Defined in
Section
“QIB”
2.01(i)
“QIB Global Note”
2.01(i)
“Registrar”
2.03
“Regulation S”
2.01(i)
“Regulation S Global Note”
2.01(i)
“Restricted Payments”
4.07(a)
“Rule 144A”
2.01(i)
“Specified Courts”
13.16
“Suspended Covenants”
4.21
“Verification Covenant”
6.01
Section 1.03 Rules of
Construction.
Unless the context otherwise
requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or”
is not exclusive;
(4) words
in the singular include the plural, and in the plural include the singular;
(5) “will”
shall be interpreted to express a command;
(6) provisions
apply to successive events and transactions;
(7) references
to sections of or rules under the Securities Act or the Exchange Act will be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time;
(8) any
reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or
“Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
(9) the
words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular
Article, Section, clause or other subdivision;
(10) unless
otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to
such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this
Indenture;
(11) in
connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):
(a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,
then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes
into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity
Interests at such time; and
26
(12) when
calculating the availability under any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection
with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the
incurrence or issuance of Indebtedness and the use of the proceeds thereof, the incurrence of Liens, repayments, Restricted Payments and
Asset Sales), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”),
the date of determination for availability under any such basket or ratio and whether any such action or transaction is permitted (or
any requirement or condition therefor is complied with or satisfied (including as to the absence of any Default or Event of Default))
under this Indenture shall be deemed to be the date (the “LCT Test Date”) the definitive agreements for such Limited
Condition Transaction are entered into (or, if applicable, the date of delivery of an irrevocable notice, declaration of a dividend or
similar event) and if, after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related thereto
(including acquisitions, Investments, the incurrence or issuance of Indebtedness and the use of proceeds thereof, the incurrence
of Liens, repayments, Restricted Payments and Asset Sales) and any related pro forma adjustments, the Company or any of its Restricted
Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance
with such ratio, test or basket (and any related requirements and conditions), such ratio, test or basket (and any related requirements
and conditions) shall be deemed to have been complied with (or satisfied) for all purposes; provided, that (a) compliance with such
ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable
LCT Test Date for such Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments,
the incurrence or issuance of Indebtedness and the use of proceeds thereof, the incurrence of Liens, repayments, Restricted Payments and
Asset Sales) and (b) Consolidated EBITDA for purposes of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio
and the Consolidated Total Leverage Ratio will be calculated using an assumed interest rate 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 Company in good faith.
For
the avoidance of doubt, if the Company has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance
was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have
been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA
or Total Assets of the Company, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied
with as a result of such fluctuations (and no Default or Event of Default shall be deemed to have occurred due to such failure to comply);
and (2) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to
such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition
Transaction is consummated or the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable
notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition
Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction.
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ARTICLE 2
THE NOTES
Section 2.01 Form and
Dating.
(a) 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 initially be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) The
terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company,
the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(c) The
Notes shall be issued initially in global form 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), which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary, and registered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.
(d) 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 transfers of
interest. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding
Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(e) Any
Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon
which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes are subject.
(f) Each
Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall
represent 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 increased or reduced to reflect redemptions, repurchases, cancellations,
conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture.
(g) Any
of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer
executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance,
or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
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(h) Except
as set forth in Section 2.06 hereof, the Global Notes may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(i) The
Initial Notes are being issued by the Company only (i) to “qualified institutional buyers” (as defined in Rule 144A
under the Securities Act (“Rule 144A”)) (“QIBs”) and (ii) in reliance on Regulation S
under the Securities Act (“Regulation S”). After such initial issuance, Initial Notes that are Transfer Restricted
Notes may be transferred as provided in the Restricted Notes Legend. Initial Notes that are offered in reliance on Rule 144A shall
be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A (collectively, the “QIB
Global Note”), deposited with the Trustee, as Custodian, duly executed by the Company and authenticated by the Trustee as hereinafter
provided. Initial Notes that are offered in offshore transactions in reliance on Regulation S shall be issued in the form of one or more
permanent Global Notes substantially in the form set forth in Exhibit A, (the “Regulation S Global Note”) duly
executed by the Company and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for
the Depositary. The QIB Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers. The aggregate principal
amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Custodian.
Transfers of Notes among QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate increases and decreases
to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.14 hereof.
(j) Sections
2.01(d), 2.01(e) and 2.01(f) hereof shall apply only to Global Notes deposited with or on behalf of the Depositary.
(k) The
Company shall execute and the Trustee shall, in accordance with Section 2.01(d) hereof and Section 2.01(e) hereof,
authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the nominee of the Depositary
and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Trustee
as Custodian for the Depositary.
(l) Notes
issued in certificated form shall be substantially in the form of Exhibit A attached hereto.
Section 2.02 Execution and
Authentication.
At least one Officer must
sign the Notes for the Company by manual, .pdf attachment or other electronically transmitted signature.
If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until
authenticated by the manual or electronic signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee will, upon receipt
of a written order of the Company signed by at least one Officer (an “Authentication Order”), authenticate Notes for
original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one
or more Authentication Orders, except as provided in Section 2.08 hereof.
29
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
At any time and from time
to time, the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver Additional Notes in an aggregate principal
amount specified in such Authentication Order for such Additional Notes issued hereunder and, in the case of any issuance of Additional
Notes pursuant to Section 2.15 hereof, such Authentication Order shall certify that such issuance is in compliance with Section 2.15
hereof.
Section 2.03 Registrar and
Paying Agent.
The Company will maintain
an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an
office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the
Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents.
The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing, and
the Trustee shall notify the Holders, of the name and address of any Agent not a party to this Indenture. The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture
that relate to such Agent. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints
The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Company initially appoints
the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent
to Hold Money in Trust.
The Company will require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest, if any, on, the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability
for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit
of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee
will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the
Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest payment date and
at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders.
30
Section 2.06 Transfer and
Exchange.
(a) Each
Global Note shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends as required by Section 2.06(e) hereof.
Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to
any Global Note held on their behalf by the Depositary, or the Trustee as Custodian, or under such Global Note, and the Depositary may
be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any Agent or other agent of the Company
or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of an owner of
a beneficial interest in any Global Note.
The
Trustee shall have no responsibility or obligation to any Holder that is a member of (or a Participant in) DTC or any other Person with
respect to the accuracy of the records of DTC (or its nominee) or of any member or Participant thereof, with respect to any ownership
interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the payment of any amount
or delivery of any Notes (or other security or property) under or with respect to the Notes. The Trustee may conclusively rely (and shall
be fully protected in relying) upon information furnished by DTC with respect to its members, participants and any beneficial owners in
the Notes.
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 Global Note (including any transfers between
or among Depositary 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 for any actions taken or not taken by the Depositary.
(b) Transfers
of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be transferred in accordance with this Section 2.06, Section 2.14
hereof and the Applicable Procedures. In addition, Certificated Notes shall be transferred to all beneficial owners (or the requesting
beneficial owners, in the case of clause (ii)) in exchange for their beneficial interests only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the Global Notes or the Depositary ceases to be a “clearing
agency” registered under the Exchange Act and a successor depositary is not appointed by the Company within ninety (90) days of
such notice, (ii) an Event of Default of which a Responsible Officer of the Trustee has received written notice thereof and the Registrar
has received a request from any beneficial owner of an interest in any Global Note (subject to the third paragraph of Section 2.06(a) hereof)
to issue such Certificated Notes or (iii) the Company, in its sole discretion, notifies the Trustee that it elects to cause the issuance
of Certificated Notes.
(c) In
connection with the transfer of the entire Global Note to beneficial owners pursuant to clause (b) of this Section, such Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate
principal amount of Certificated Notes of authorized denominations.
31
(d) The
registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may
hold interest through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(e) Legends.
Each Global Note will bear the Global Note Legend on the face thereof. Each Global Note issued at a more than de minimis discount
to its redemption price at maturity (and all Notes issued in exchange therefore or substitution thereof) shall bear an OID Legend on the
face thereof.
(f) At
such time as all beneficial interests in a particular Global Note have been exchanged for Certificated Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global
Note or for Certificated Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement
will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(g) General
Provisions Relating to Transfers and Exchanges.
(1) To permit
registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Certificated Notes
upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
(2) No service
charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Certificated Note for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar
will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(4) All Global
Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes will be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated
Notes surrendered upon such registration of transfer or exchange.
(5) Neither
the Registrar nor the Company will be required:
(A) to
issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day
of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
32
(B) to
register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part; or
(C) to
register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.
(6) Prior to
due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest
on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee
will authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar to effect a registration of transfer or exchange may be
submitted by .pdf attachment or other electronically transmitted signature.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered
to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s
requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Company may charge for its expenses (including the fees and expenses of the Trustee)
in replacing a Note.
Every replacement Note is
an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with
all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions
in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant
to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a protected purchaser.
If the principal amount of
any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
33
If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the
Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any
Affiliate of the Company, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee
will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows
are so owned will be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Company or an Affiliate of the
Company pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title
to such Notes passes to such entity.
Section 2.10 Temporary Notes.
Until certificates representing
Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary
Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate
for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate certificated Notes in exchange for temporary Notes.
Holders of temporary Notes
will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will dispose of such canceled Notes (subject to the record retention requirement of
the Exchange Act) in its customary manner. Certification of the disposition of all canceled Notes will be delivered to the Company upon
its written request therefor. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 Defaulted Interest.
If
the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at
the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special
record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date
for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.
34
Section 2.13 CUSIP Numbers.
The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided, 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 redemption and that reliance
may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will as promptly as practicable notify the Trustee in writing of any change in “CUSIP”
numbers.
Section 2.14 Special Transfer
Provisions.
Each
Initial Note and each Additional Note issued pursuant to an exemption from registration under the Securities Act will constitute a Transfer
Restricted Note and be required to bear the Restricted Notes Legend until the expiration of the Resale Restriction Termination Date therefor,
unless and until such Transfer Restricted Note is transferred or exchanged pursuant to an effective registration statement under the Securities
Act. The following provisions shall apply to the transfer of a Transfer Restricted Note, subject to Section 2.14(d) hereof:
(a) Transfers
to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Note
(other than pursuant to Regulation S under the Securities Act) to a QIB:
(1) The Registrar
shall register the transfer of a Transfer Restricted Note by a Holder to a QIB if such transfer is being made by a proposed transferor
who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a
letter substantially in the form set forth in Exhibit D from the proposed transferor.
(2) If the
proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the Regulation S
Global Note, upon receipt by the Registrar of (x) the items required by paragraph (1) above and (y) instructions given
in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial
interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial
interest in such Regulation S Global Note to be so transferred.
(b) Transfers
Pursuant to Regulation S. The following provisions shall apply with respect to registration of any proposed transfer of a Transfer
Restricted Note pursuant to Regulation S:
(1) The Registrar
shall register any proposed transfer of a Transfer Restricted Note by a Holder pursuant to Regulation S upon receipt of (a) an appropriately
completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit E
hereto from the proposed transferor.
(2) If the
proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the QIB Global Note,
upon receipt by the Registrar of (x) the letter, if any, required by paragraph (1) above and (y) instructions in accordance
with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest
in the QIB Global Note to be transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease
in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial interest in such QIB Global
Note to be transferred.
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(3) Prior to
the expiration of the Resale Restriction Termination Date, interests in the Regulation S Global Note may only be held through Euroclear
or Clearstream.
(c) Restricted
Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver
Notes that do not bear the Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend,
the Registrar shall deliver only Notes that bear the Restricted Notes Legend unless there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the Securities Act.
(d) General.
By its acceptance of any Note bearing the Restricted Notes Legend, each Holder of such a Note acknowledges the restrictions on transfer
of such Note set forth in this Indenture and in the Restricted Notes Legend and agrees that it shall transfer such Note only as provided
in this Indenture. A transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated
Note or a beneficial interest in another Global Note shall be subject to compliance with applicable law and the Applicable Procedures
of the Depositary but is not subject to any procedure required by this Indenture.
In
connection with any proposed transfer pursuant to Regulation S or pursuant to any other available exemption from the registration requirements
of the Securities Act (other than pursuant to Rule 144A), the Company and the Trustee may require the delivery of an Opinion of Counsel,
other certifications or other information satisfactory to the Company and the Trustee.
The
Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.14.
Section 2.15 Issuance of Additional
Notes.
The
Company shall be entitled to issue Additional Notes under this Indenture that shall have identical terms as the Initial Notes, other than
with respect to the date of issuance, issue price and amount of interest payable on the first interest payment date applicable thereto
(and, if such Additional Notes shall be issued in the form of Transfer Restricted Notes, other than with respect to transfer restrictions
and additional interest with respect thereto); provided that such issuance is not prohibited by the terms of this Indenture, including
Section 4.09 and Section 4.12. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes
under this Indenture. Any such Additional Notes that are not fungible with the Initial Notes offered hereunder for U.S. federal income
tax purposes shall have a separate CUSIP, ISIN or other identifying number from such Initial Notes.
With
respect to any Additional Notes, the Company shall set forth in a Board of Directors resolution and in an Officers’ Certificate,
a copy of each of which shall be delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
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(b) the
issue price, the issue date, the CUSIP number of such Additional Notes, the first interest payment date and the amount of interest payable
on such first interest payment date applicable thereto and the date from which interest shall accrue; and
(c) whether
such Additional Notes shall be Transfer Restricted Notes.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices
to Trustee.
If the Company elects to redeem
Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 5 Business
Days before the date of giving of the notice of redemption (or such shorter notice as may be acceptable to the Trustee) but not more than
60 days before a redemption date, an Officers’ Certificate setting forth:
(1) the clause
of this Indenture pursuant to which the redemption shall occur;
(2) the redemption
date;
(3) the principal
amount of Notes to be redeemed; and
(4) the redemption
price.
Section 3.02 Selection of
Notes to Be Redeemed or Purchased.
(a) If
less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Notes will be selected for redemption
by lot (or, in the case of Notes issued in global form pursuant to Article 2 hereof, pursuant to Applicable Procedures) unless otherwise
required by law or applicable stock exchange or depositary requirements.
(b) No
Notes of $2,000 or less can be redeemed in part. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed
or purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase
date by the Trustee from the outstanding Notes not previously called for redemption or purchase.
(c) Notes
and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.
Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also
apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions
of Section 3.09 hereof, at least 10 days but not more than 60 days before a redemption date, the Company will send a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days
prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this
Indenture pursuant to Articles 8 or 12 hereof.
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The notice will identify the
Notes to be redeemed and will state:
(1) the redemption
date;
(2) the redemption
price;
(3) if any
Notes are being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the redemption date
upon surrender of such Notes, new Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original
Notes;
(4) the name
and address of the Paying Agent;
(5) that Notes
called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless
the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption
date;
(7) the paragraph
of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
(8) that no
representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company’s request,
the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Trustee
is given at least 5 Business Days prior notice of the date of the giving of such notice (unless a shorter period shall be acceptable to
the Trustee).
Section 3.04 Effect of Notice
of Redemption.
Once notice of redemption
is sent in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price; provided, however, that any redemption or notice of any redemption may, at the Company’s
discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering
or other corporate transaction or event. In addition, the Company may provide in any notice of redemption that payment of the redemption
price and the performance of its obligations with respect to such redemption may be performed by another person; provided, further,
however, that the Company shall remain obligated to pay the redemption price and perform its obligations with respect to such redemption
in the event such other person fails to do so. Notice of any redemption in respect of an Equity Offering may be given prior to completion
thereof.
Section 3.05 Deposit of Redemption
or Purchase Price.
On or prior to 10:00 A.M. Eastern
Time on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying
Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased upon written receipt
of instructions from the Company specifying how such funds are to be delivered.
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If the Company complies with
the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or
the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender
for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid
on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed
or Purchased in Part.
Upon surrender of a Note that
is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for
the Holder at the expense of the Company new Notes equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At
any time prior to June 15, 2028, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount
of Notes issued under this Indenture (including Additional Notes, if any), upon not less than 10 nor more than 60 days’ notice,
at a redemption price equal to 111.00% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the
redemption date (subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date),
in an amount not to exceed the net cash proceeds of one or more Equity Offerings of the Company; provided that:
(1) at least
50% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption
occurs within 90 days of the date of the closing of such Equity Offering.
(b) At
any time prior to June 15, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than
10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment date.
(c) Except
pursuant to the preceding paragraphs of this Section 3.07, the Notes will not be redeemable at the Company’s option prior to
June 15, 2028.
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(d) On
or after June 15, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued
and unpaid interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning
on June 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year
Percentage
2028
105.500 %
2029
102.750 %
2030 and thereafter
100.000 %
Unless the Company defaults
in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable
redemption date.
(e) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
(f) Any
redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including,
but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. In addition, the Company
may provide in any notice of redemption that payment of the redemption price and the performance of its obligations with respect to such
redemption may be performed by another person; provided, however, that the Company shall remain obligated to pay the redemption
price and perform its obligations with respect to such redemption in the event such other person fails to do so. Notice of any redemption
in respect of an Equity Offering may be given prior to completion thereof. Further, the redemption date of any redemption that is subject
to satisfaction of one or more conditions precedent may, in the Company’s discretion, be delayed until such time as any or all such
conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and any notice with
respect to such redemption may be modified or rescinded in the event that any or all such conditions shall not have been satisfied (or
waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed (which may exceed 60 days from
the date of the redemption notice in such case). In addition, such notice of redemption may be extended if such conditions precedent have
not been satisfied or waived by the Company by providing notice to the Holders.
Section 3.08 Mandatory Redemption.
The Company is not required
to make mandatory redemption or sinking fund payments with respect to the Notes. However, for the avoidance of doubt, the Company may
be required to offer to purchase Notes as described elsewhere in this Indenture. The foregoing shall be without prejudice to the Company’s
ability, at any time and from time to time, to purchase Notes in the open market or otherwise.
Section 3.09 Offer to Purchase
by Application of Excess Proceeds.
In the event that, pursuant
to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”),
it will follow the procedures specified below.
The Asset Sale Offer shall
be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets. The Asset
Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except
to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business
Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the
“Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis
based on the principal amount of Notes and such other pari passu Indebtedness surrendered, if applicable) or, if less than the
Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased will be made in the same manner as interest payments are made.
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If the Purchase Date is on
or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be
paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an
Asset Sale Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of
the Asset Sale Offer, will state:
(1) that the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
will remain open;
(2) the Offer
Amount, the purchase price and the Purchase Date;
(3) that any
Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless
the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest
after the Purchase Date;
(5) that Holders
electing to have Notes purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or an integral
multiple of $1,000 in excess thereof;
(6) that Holders
electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option
of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary,
if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders
will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a letter (which may be sent via electronic transmission) setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;
(8) that, if
the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount,
the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased); and
(9) that Holders
whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered
(or transferred by book-entry transfer).
On or before the Purchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount
of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09.
The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than three Business Days
after the Purchase Date) send to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company,
will authenticate and send (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly sent by the Company to the Holder thereof. The
Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
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Other than as specifically
provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will 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. Principal,
premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest then due.
The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
Section 4.02 Maintenance of
Office or Agency.
The Company will maintain
in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to
or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required
office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
The Company may also from
time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency.
The Company hereby designates
an affiliate of the Trustee at 240 Greenwich Street, New York, New York 10286 as one such office or agency of the Company in accordance
with Section 2.03 hereof.
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Section 4.03 Reports.
(a) Whether
or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders
or cause the Trustee to furnish to the Holders, within the time periods specified in the SEC’s rules and regulations:
(1) all quarterly
and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports;
and
(2) all current
reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports;
provided, however, that the availability
of the foregoing materials on the SEC’s EDGAR service or on the Company’s website shall be deemed to satisfy the Company’s
delivery obligations under this Section 4.03(a).
All such reports will be prepared
in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K
will include a report on the Company’s consolidated financial statements by the Company’s independent registered public accounting
firm. In addition, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the
SEC for public availability within the time periods specified in the rules and regulations applicable to such reports (unless the
SEC will not accept such a filing) and will make such information available to securities analysts and prospective investors upon request.
Notwithstanding
anything to the contrary set forth in the foregoing, if the Company is at any time not obligated to file or furnish such reports with
or to the SEC, the Company shall be permitted to make available such information to prospective purchasers, the Trustee and the Holders
in the manner contemplated by the following paragraph within the time the Company would have been required to file such information with
the SEC if it were subject to Section 13 or 15(d) of the Exchange Act as provided above and shall not be required to file or
furnish such reports with or to the SEC; provided, further, (i) in no event shall such financial statements, information or reports
be required to comply with (v) Rule 3-10 of Regulation S-X promulgated by the SEC (or such other rule or regulation that
amends, supplements or replaces such Rule 3-10, including for the avoidance of doubt, Rules 13-01 or 13-02 of Regulation S-X
promulgated by the SEC), (w) Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or
replaces such Rule 3-09), (x) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements
or replaces such Rule 3-16), (y) Rule 3-05 of Regulation S-X (or such other rule or regulation that amends, supplements
or replaces such Rule 3-05) or (z) any requirement to otherwise include any schedules or separate financial statements of any
of the Subsidiaries of the Company, Affiliates or equity method investees, (ii) in no event shall such financial statements, information
or reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC
with respect to any non-GAAP financial measures contained therein, (iii) no such financial statements, information or reports referenced
under clause (2) above shall be required to be furnished if the Company determines in its good faith judgment that such event is
not material to the Holders or the business, assets, operations or financial position of the Company and its Restricted Subsidiaries,
taken as a whole, (iv) in no event shall such financial statements or reports be required to include any information that is not
otherwise similar to information included in the Company’s offering memorandum dated June 3, 2026, relating to the initial
offering of the Notes, other than with respect to information or reports provided under clause (2) above, including, for the avoidance
of doubt, director and executive officer compensation information required by Item 402 of Regulation S-K or any other compensation information
or any information required by Item 407 of Regulation S-K and (v) in no event shall information or reports be required to include
as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a Form 10-K,
Form 10-Q or Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma
financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only
pro forma revenues, EBITDA and capital expenditures in lieu thereof.
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In the event the Company is
not required to file reports with the SEC, in addition to providing such information to the Trustee, the Company shall make available
to the Holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information
required to be provided pursuant to clauses (a)(1) and (a)(2) of this Section 4.03, by posting such information to its
website or on IntraLinks or any comparable online data system or website, it being understood that the Trustee shall have no responsibility
to determine if such information has been posted on any website. Notwithstanding the foregoing, the Company will be deemed to have furnished
such reports referred to above to the Trustee, the Holders, prospective investors, market makers and securities analysts if the Company
has filed such reports with the SEC via the EDGAR filing system (or any successor thereto) and such reports are publicly available, it
being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) If
the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required
by paragraph (a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the
financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
In the event that:
(1) the rules and
regulations of the SEC permit the Company and any direct or indirect parent of the Company to report at such parent entity’s level
on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership,
directly or indirectly, of the Capital Stock of the Company, or
(2) any direct
or indirect parent of the Company is or becomes a Guarantor of the Notes, consolidating reporting at the parent entity’s level in
a manner consistent with that described in this Section 4.03 for the Company will satisfy this Section 4.03, and this Indenture
will permit the Company to satisfy its obligations in this Section 4.03 with respect to financial information relating to the Company
by furnishing financial information relating to such direct or indirect parent; provided that such financial information is accompanied
by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect
parent and any of its Subsidiaries other than the Company and its Subsidiaries, on the one hand, and the information relating to the Company
and its Subsidiaries on a standalone basis, on the other hand.
For so long as any Notes remain
outstanding, if at any time the Company or any Guarantors are not required to file the reports required by the preceding paragraphs, they
will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of such reports,
information and documents to the Trustee pursuant to this Section 4.03 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 information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on an Officers’ Certificate).
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Section 4.04 Compliance Certificate.
(a) The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year (commencing with the fiscal year 2027), an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or
her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company
is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium on, if any, or interest, if any, on, the Notes is prohibited
or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So
long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith (and in any event within 10 days) upon any
Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.05 [Reserved].
[Reserved].
Section 4.06 [Reserved].
[Reserved].
Section 4.07 Restricted Payments.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare
or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase,
redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving
the Company) any Equity Interests (other than any such Equity Interest owned by a wholly owned Restricted Subsidiary of the Company) of
the Company or any direct or indirect parent of the Company;
(3) make any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or
any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between
or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal on, or the purchase, repurchase
or other acquisition of, such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of such payment, purchase, repurchase or other acquisition; or
45
(4) make any
Restricted Investment;
(all such payments
and other actions set forth in these clauses (1) through (4) being collectively referred to as “Restricted Payments”),
unless,
at the time of and after giving effect to such Restricted Payment, no Default or Event of Default has occurred and is continuing or would
occur as a consequence of such Restricted Payment if for the Company’s four most recent fiscal quarters for which internal financial
statements are available (x) the Fixed Charge Coverage Ratio is not less than 1.6 to 1.0 and (y) the Consolidated Total Leverage
Ratio is no greater than 6.50 to 1.00, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made
by the Company and its Restricted Subsidiaries since the date hereof (except for Restricted Payments made pursuant to Sections 4.07(b)(1) (so
long as such Restricted Payment was previously included for purposes of this calculation (to the extent required to be so included) at
the time of its declaration), 4.07(b)(2), 4.07(b)(3), 4.07(b)(4), 4.07(b)(6), 4.07(b)(7), 4.07(b)(8), 4.07(b)(9), 4.07(b)(10), 4.07(b)(11)
or 4.07(b)(12) below), is less than the sum of $75.0 million and, without duplication:
(a) Excess
Cash of the Company for the period (taken as one accounting period) from April 5, 2026 to the end of the Company’s most recently
ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment; plus
(b) 100%
of the aggregate net cash proceeds received by the Company since April 5, 2026 as a contribution to its common equity capital or
from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged
for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company);
plus
(c) 100%
of the Fair Market Value as of the date of issuance of any Equity Interests (other than Disqualified Stock) issued since April 5,
2026 by the Company as consideration for the purchase by the Company or any of its Restricted Subsidiaries of all or substantially all
of the assets of, or a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other
business combination permitted under this Indenture); plus
(d) to
the extent that any Restricted Investment that was made after April 5, 2026 is sold for cash or other property or otherwise liquidated
or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment or the Fair Market Value
of such other property (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus
(e) to
the extent that any Unrestricted Subsidiary of the Company designated as such after April 5, 2026 is redesignated as a Restricted
Subsidiary after April 5, 2026 or merges or consolidates with or into, or is liquidated into, the Company or any of its Restricted
Subsidiaries, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such
redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted
Subsidiary after April 5, 2026.
46
(b) The
preceding provisions will not prohibit:
(1) the payment
of any dividend or the consummation of any irrevocable redemption within 120 days after the date of declaration of the dividend or giving
of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied
with the provisions of this Indenture;
(2) the making
of any Restricted Payment in exchange for, or out of the net cash proceeds of the sale within 10 Business Days (other than to a Subsidiary
of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the contribution of common equity capital
to the Company within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted
Payment will be excluded from clause (b) of the second paragraph of Section 4.07(a);
(3) the repurchase,
redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness
or issuance of Disqualified Stock permitted to be issued by Section 4.09 hereof within 10 Business Days from such incurrence or issuance;
(4) the payment
of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary
of the Company to the holders of its Equity Interests on a pro rata basis;
(5) so long
as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director
or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option plan or any
other management or employee benefit plan or agreement, shareholders’ agreement or similar agreement; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $15.0 million in any calendar year
(provided that the Company may carry over and make in a subsequent calendar year, in addition to the amounts permitted for such
calendar year, up to $5.0 million of unutilized capacity under this clause (5) attributable to the immediately preceding calendar
year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds received
by the Company or any of its Restricted Subsidiaries (to the extent contributed to the Company) from sales of Equity Interests (other
than Disqualified Stock) of the Company to officers, directors or employees of the Company or any of its Restricted Subsidiaries that
occur after the date of this Indenture (provided that the amount of such cash proceeds used for any such repurchase, redemption,
acquisition or retirement will not increase the amount available for Restricted Payments under clause (b) of the second paragraph
of Section 4.07(a) hereof and provided that the Company may elect to apply all or any portion of the aggregate increase
contemplated by this proviso in any calendar year); provided, further, that cancellation of Indebtedness owing to the Company from
members of management of the Company or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Company will
not be deemed to constitute a Restricted Payment;
47
(6) the repurchase
of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the
exercise price of those stock options;
(7) so long
as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued
dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on
or after the date of this Indenture in accordance with Section 4.09 hereof;
(8) so long
as no Default has occurred and is continuing or would be caused thereby, upon the occurrence of an Asset Sale or a Change of Control and
within 60 days after the completion of the related Asset Sale Offer or Change of Control Offer, any purchase or redemption of Indebtedness
of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee required pursuant to the terms
thereof as a result of such Asset Sale or Change of Control at a purchase or redemption price not to exceed 101% of the outstanding principal
amount thereof, plus accrued and unpaid interest thereon, if any; provided, however, that such purchase or redemption is
not made, directly or indirectly, from the proceeds of (or made in anticipation of) any issuance of Indebtedness by the Company or any
of its Restricted Subsidiaries;
(9) payments
of dividends to the Company solely to enable it to make payments to holders of its Capital Stock in lieu of the issuance of fractional
shares of its Capital Stock;
(10) the acquisition
of any shares of Disqualified Stock of the Company in exchange for other shares of Disqualified Stock of the Company or with the net cash
proceeds from an issuance of Disqualified Stock by the Company within 10 Business Days of such issuance, in each case that is permitted
to be issued under Section 4.09 hereof;
(11) repurchase
or redemption of any 2027 Notes; and
(12) so long as
no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount at the time outstanding
not to exceed the greater of (i) $25.0 million or (ii) 0.8% of Total Assets.
(c) For
purposes of this Section 4.07, the amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date
of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary,
as the case may be, pursuant to the Restricted Payment. For purposes of determining compliance with this Section 4.07, in the event
that a Restricted Payment meets the criteria of more than one of the exceptions described in Section 4.07(b) or is entitled
to be made pursuant to Section 4.07(a) hereof, the Company will be permitted, in its sole discretion, to classify the Restricted
Payment, or later reclassify the Restricted Payment, in any manner that complies with this Section 4.07. For the avoidance of doubt,
the foregoing provisions do not restrict the repurchase, redemption, defeasance or other acquisition or retirement for value of the Existing
Notes including any call premium paid in connection therewith.
Section 4.08 Dividend and
Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends
or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other
interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
48
(2) make loans
or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer
any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) However,
the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason
of:
(1) agreements
governing Existing Indebtedness and any other agreement, including the Credit Agreement, the 2027 Notes Indenture, the 2028 Notes Indenture,
as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, increases,
supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in those agreements on the date of this Indenture;
(2) this Indenture,
the Notes and the Note Guarantees;
(3) applicable
law, rule, regulation or order;
(4) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of this Indenture to be incurred;
(5) customary
non-assignment provisions in contracts, licenses and other commercial agreements entered into in the ordinary course of business;
(6) purchase
money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the
property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(7) any agreement
for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending its sale or other disposition;
(8) Permitted
Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are, in the good faith judgment of the senior management or Board of Directors of the Company, not materially more restrictive,
taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(9) any restriction
on the transfer of assets under any Lien permitted under this Indenture imposed by the holder of the Lien;
49
(10) provisions
limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s
Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(11) restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(12) any other agreement
governing Indebtedness incurred after the date of this Indenture that contains encumbrances or other restrictions that are, in the good
faith judgment of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions
that are customary in comparable financings.
Section 4.09 Incurrence of
Indebtedness and Issuance of Preferred Stock.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise, (collectively, “incur”) with respect
to any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock,
if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or
such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or
the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
(b) The
provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively,
“Permitted Debt”):
(1) the incurrence
by the Company and any of its Restricted Subsidiaries of (A) Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (including amounts incurred and outstanding pursuant to clause
(B) of this clause (1)) not to exceed the greater of (x) $1,400.0 million, and (y) any additional amount, if after giving
pro forma effect to the incurrence of such additional amount and the application of proceeds therefrom, the Consolidated Secured Leverage
Ratio would be no greater than 4.25 to 1.00 (provided, that solely for the purpose of determining compliance with this clause (1)(A)(y) of
this covenant, any Indebtedness that is incurred and outstanding or proposed to be incurred, in each case pursuant to this clause (1)(A)(y) will
be deemed to be Total Secured Debt for purposes of calculating the Consolidated Secured Leverage Ratio) and (B) any Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (1);
(2) the incurrence
by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence
by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of
this Indenture;
50
(4) the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of design,
construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted
Subsidiaries (whether through the direct purchase of assets or the Equity Interests of any Person owning such assets), in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (i) $125.0 million or (ii) 4.0% of Total
Assets at any time outstanding;
(5) the incurrence
by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which
are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under Section 4.09(a) or clauses (2), (3), (4), (5), (16) or (17) of this Section 4.09(b);
(6) the incurrence
by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that:
(a) if
the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must
be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the
Company, or the Note Guarantee, in the case of a Guarantor; and
(b) (i) any
subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company
or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either
the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the issuance
by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock;
provided, however, that:
(a) any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company
or a Restricted Subsidiary of the Company; and
(b) any
sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by
this clause (7);
(8) the incurrence
by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the Note
Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed
is subordinated to or pari passu with the Notes, then the Note Guarantee shall be subordinated or pari passu, as applicable,
to the same extent as the Indebtedness guaranteed;
51
(10) the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of bankers’ acceptances, performance, bid and surety
bonds and completion guarantees provided in the ordinary course of business;
(11) the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;
(12) the incurrence
of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment
of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or a Restricted
Subsidiary, other than the Note Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets
or a Restricted Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability
in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such
non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received
by the Company and Restricted Subsidiaries in connection with such disposition;
(13) the incurrence
of Indebtedness owed to any Person in connection with worker’s compensation, self-insurance, health, disability or other employee
benefits or property, casualty or liability insurance provided by such Person to the Company or any of its Restricted Subsidiaries, pursuant
to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business and consistent
with past practices;
(14) pledges, deposits
or payments made or given in the ordinary course of business in connection with or to secure statutory, regulatory or similar obligations,
including obligations under health, safety or environmental obligations, or arising from guarantees to suppliers, lessors, licenses, contractors,
franchisees or customers of obligations, other than Indebtedness, made in the ordinary course of business;
(15) the incurrence
of Indebtedness by the Company or any of its Restricted Subsidiaries issued to directors, officers or employees of the Company or any
of its Restricted Subsidiaries in connection with the redemption or purchase of Capital Stock that, by its terms, is subordinated to the
Notes, is not secured by any assets of the Company or any of its Restricted Subsidiaries and does not require cash payments prior to the
Stated Maturity of the Notes, in an aggregate principal amount at any time outstanding not to exceed $5.0 million;
(16) the incurrence
of (x) Indebtedness by the Company or any Restricted Subsidiary to finance an acquisition (including, without limitation, by way
of a merger) of Capital Stock of any Person engaged in, or assets used or useful in, a Permitted Business or (y) Acquired Debt; provided
that the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such Indebtedness is incurred would have been at least 1.75 to 1.0, determined
on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the Indebtedness had been incurred at the
beginning of such four-quarter period; and
52
(17) the incurrence
by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease
or discharge any Indebtedness incurred pursuant to this clause (17), not to exceed the greater of (i) $125.0 million or (ii) 4.0%
of Total Assets.
The
Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that
no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by
virtue of being unsecured or by virtue of being secured on a first or junior priority basis.
For
purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria
of more than one of the categories of Permitted Debt described in clauses (1) through (17) above, or is entitled to be incurred pursuant
to Section 4.09(a) hereof and the granting of any Lien to secure such Indebtedness, the Company will be permitted to classify
such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on
the date on which Notes are first issued and authenticated under this Indenture will be deemed to have been incurred on such date
in reliance on the exception provided by clause (1) of the definition of “Permitted Debt” only and may not be reclassified.
Indebtedness under Credit Facilities (other than the Notes and Indebtedness under the Credit Agreement) outstanding on the date on which
the Notes are first issued and authenticated under this Indenture will initially be deemed Existing Indebtedness to be incurred pursuant
to clause (2) of the definition of “Permitted Debt.” The accrual of interest, the
accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment
of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09. Notwithstanding any other provision
of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this
Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
In connection with the incurrence
or issuance, as applicable, of (x) revolving loan Indebtedness under this covenant or (y) any commitment (including for revolving
loan Indebtedness) or other transaction relating to the incurrence or issuance of Indebtedness, Disqualified Stock or preferred stock
under this covenant and the granting of any Lien to secure such Indebtedness, in each case in reliance on a basket requiring calculation
of the Consolidated Secured Leverage Ratio, the Company or the applicable Restricted Subsidiary may designate such incurrence or issuance
and the granting of any Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment
or intention to consummate such transaction (such date, the “Deemed Date”), and any related subsequent actual incurrence
or issuance and granting of such Lien therefor will be deemed to have been incurred or issued and granted on such Deemed Date for purposes
of calculating the Consolidated Secured Leverage Ratio (and all such calculations of the Consolidated Secured Leverage Ratio on and after
the Deemed Date until the termination of such commitment, including as a result of funding a non-revolving commitment, or until such transaction
is consummated or abandoned or such election is rescinded shall be made on a pro forma basis giving effect to the deemed incurrence or
issuance, the granting of any Lien therefor and related transactions in connection therewith). Any such election may be rescinded at any
time, provided that such rescission does not cause a Default as a result of the provisions of this paragraph ceasing to be applicable.
53
The
amount of any Indebtedness outstanding as of any date will be:
(1) the
accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the
principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in
respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the
Fair Market Value of such assets at the date of determination; and
(B) the
amount of the Indebtedness of the other Person.
Section 4.10 Asset Sales.
The
Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company
(or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market
Value (measured as of the date of the definitive agreement with respect to such Asset Sale), as determined in good faith by the Company,
of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least
75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following will be deemed to be cash:
(A) any
liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other
than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed
by the transferee of any such assets and the Company or such Restricted Subsidiary is released from further liability;
(B) any
securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted
by the Company or such Restricted Subsidiary into cash within 180 days after such Asset Sale, to the extent of the cash received in that
conversion;
(C) any
Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time
outstanding, not to exceed the greater of (i) $100.0 million or (ii) 3.0% of Total Assets, with the Fair Market Value of each
item of Designated Non-cash Consideration being measured at the time received and with giving effect to subsequent changes in value; and
(D) any
stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10.
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Any
Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to
the foreclosure or other enforcement of a Permitted Lien or exercise by the related lienholder of rights with respect to any of the foregoing,
including by deed or assignment in lieu of foreclosure, will not be required to satisfy the conditions set forth in the preceding paragraph.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the
case may be) may apply such Net Proceeds, at its option:
(1) (x) to
repay, prepay or purchase Indebtedness and other Obligations under a Credit Facility and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto, (y) (i) to redeem the Notes as provided under Section 3.07,
or (ii) to make an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase
their Notes at a purchase price equal to at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest,
if any, on the principal amount of the Notes to be repurchased to the repurchase date, it being understood that if such offer is made
but any Holders decline, it will satisfy this requirement or (z) to repay any Indebtedness of a Restricted Subsidiary that is not
a Guarantor;
(2) to
acquire all or substantially all of the assets of another Permitted Business, or to acquire any Capital Stock of another Permitted Business,
if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;
(3) to
make a capital expenditure;
(4) to
acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) any
combination of the foregoing clauses (1) through (4).
In
the case of clauses (2) and (4) above, the Company will be deemed to have complied with its obligations in the preceding paragraph
if it enters into a binding commitment to acquire such assets or Capital Stock prior to 360 days after the receipt of the applicable Net
Proceeds; provided that such binding commitment will be subject only to customary conditions and such acquisition is completed within
180 days following the expiration of the aforementioned 360 day period. If the acquisition contemplated by such binding commitment is
not consummated on or before such 180th day, and the Company has not applied the applicable Net Proceeds for another purpose permitted
by the preceding paragraph on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net
Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise
invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any
Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute
“Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, within 30 days thereof, the
Company will make an Asset Sale Offer to all Holders, and all other Pari Passu Obligations which require such offer pursuant to provisions
similar to those set forth in this Indenture with respect to offers, to purchase, prepay or redeem with the proceeds of sales of assets,
to purchase, prepay or redeem the maximum principal amount of Notes and such other Pari Passu Obligations (plus all accrued interest on
the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased,
prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount
plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and other Pari Passu Obligations tendered into (or required to be prepaid or redeemed
in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Pari
Passu Obligations to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion
of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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Any
Asset Sale Offer will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation
14e-1 under the Exchange Act and the rules thereunder and all other applicable Federal and state securities laws. To the extent that
the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company’s compliance
with those laws and regulations will not in and of itself cause a breach of its obligations under this Section 4.10.
Section 4.11 Transactions
with Affiliates.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to, on or after the date of this Indenture, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company (each, an “Affiliate Transaction”) involving aggregate consideration in excess of $5.0 million,
unless:
(1) the Affiliate
Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of
the Company; and
(2) the Company
delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration
in excess of $25.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying
that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by
a majority of the disinterested members of the Board of Directors of the Company or, if none, a disinterested representative appointed
by the Board of Directors for such purpose.
(b) The
following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment
agreement, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions
between or among the Company and/or its Restricted Subsidiaries;
(3) transactions
with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns,
directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) fees and
compensation paid to officers and employees of the Company or any Restricted Subsidiaries, to the extent such fees and compensation are
reasonable and customary, and payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;
56
(5) any issuance
or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates, employees, officers and directors of the Company
or any of its Restricted Subsidiaries;
(6) Restricted
Payments that are permitted by Section 4.07 hereof;
(7) maintenance
in the ordinary course of business of customary benefit programs or arrangements for employees, officers or directors, including vacation
plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans;
(8) loans or
advances to employees that are permitted under the definition of Permitted Investments contained herein;
(9) any agreement
as in effect and entered into as of the date of this Indenture, or any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not
more disadvantageous to the Holders in any material respect than the original agreement as in effect on the date of this Indenture;
(10) any transaction
or series of transactions between the Company or any Restricted Subsidiary and any of their Joint Ventures; provided that (a) such
transaction or series of transactions is in the ordinary course of business between the Company or such Restricted Subsidiary and such
Joint Venture and (b) with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25.0 million,
such Affiliate Transaction complies with Section 4.11(a)(1) hereof and such Affiliate Transaction has been approved by the Board
of Directors of the Company; and
(11) any service,
purchase, lease, supply or similar agreement entered into in the ordinary course of business between the Company or any Restricted Subsidiary
and any Affiliate that is a customer, client, supplier or purchaser or seller of goods or services, so long as the senior management or
Board of Directors of the Company determines in good faith that any such agreement is on terms not materially less favorable to the Company
or such Restricted Subsidiary than those that could be obtained in a comparable arms’-length transaction with an entity that is
not an Affiliate.
Section 4.12 Liens.
(a) The
Company will not, and will not permit any Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind (other than Permitted Liens) to secure Indebtedness of any kind on any asset now owned or hereafter acquired, unless all payments
due under this Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured (or, if such obligations
are subordinated by their terms to the Notes or the Note Guarantees, senior in priority to the obligations so secured) until such time
as such obligations are no longer secured by a Lien.
(b) Any
Lien created for the benefit of the Holders pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically
and unconditionally released and discharged upon the release and discharge of the Lien that gave rise to the obligation to so secure the
Notes or the Note Guarantees.
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Section 4.13 Business Activities.
The
Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole, as reasonably determined in good
faith by the Board of Directors of the Company.
Section 4.14 [Reserved].
Section 4.15
Offer to Repurchase Upon Change of Control.
(a) If
a Change of Control occurs, each Holder will have the right to require the Company to repurchase all or any part (equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to the terms set forth herein (a “Change
of Control Offer”). In the Change of Control Offer (subject to the conditions required by applicable law, if any), the Company
will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if
any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date (the “Change of Control Payment”). Within 30 days following any Change of
Control, the Company will send a notice to each Holder describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 30
days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”), pursuant to
the procedures required by this Indenture and described in such notice. Holders electing to have Notes purchased pursuant to a Change
of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes completed, to the Paying Agent at the address specified in the notice of Change of Control Offer prior to the close
of business on the third Business Day prior to the Change of Control Payment Date.
Any Change of Control Offer
will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation 14e-1 under the
Exchange Act and the rules thereunder and all other applicable Federal and state securities laws in connection with the repurchase
of the Notes pursuant to the Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 4.15, the Company’s compliance with those laws and regulations will not in and of itself
cause a breach of its obligations under this Section 4.15.
(b) On
the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered;
and
(3) deliver
or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the Company.
The Paying Agent will promptly
send to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder new Notes equal in principal amount to any unpurchased portion of the Notes
surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
58
The Company will not be required
to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered
and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof,
unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained
herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control,
if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Section 4.16 [Reserved].
Section 4.17 Limitation on
Sale and Leaseback Transactions.
The Company will not, and
will not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Company
or any Guarantor may enter into a sale and leaseback transaction if:
(1) the Company
or that Guarantor, as applicable, could have (a) incurred Indebtedness in an amount equal to the Attributable Debt relating to such
sale and leaseback transaction under the Fixed Charge Coverage Ratio test in Section 4.09(a) hereof and (b) incurred a
Lien to secure such Indebtedness pursuant to the provisions of Section 4.12 hereof;
(2) the gross
cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value of the property that is the subject of
that sale and leaseback transaction; and
(3) the transfer
of assets in that sale and leaseback transaction is permitted by, and the Company applies the proceeds of such transaction in compliance
with, Section 4.10 hereof.
Section 4.18 [Reserved].
[Reserved]
Section 4.19 Additional Note
Guarantees.
If the Company or any of its
Restricted Subsidiaries acquires or creates another Domestic Subsidiary after the date of this Indenture, then that newly acquired or
created Domestic Subsidiary will become a Guarantor and execute and deliver a supplemental indenture providing for a Guarantee and deliver
an Opinion of Counsel (subject to customary assumptions and exceptions) satisfactory to the Trustee within 10 Business Days of the date
on which it was acquired or created; provided that any Domestic Subsidiary that constitutes an Immaterial Subsidiary need not become
a Guarantor until such time as it ceases to be an Immaterial Subsidiary. The form of such supplemental indenture and the related additional
Notation of Guarantee are each attached hereto as Exhibit C and Exhibit B, respectively.
Section 4.20 Designation of
Restricted and Unrestricted Subsidiaries.
The Board of Directors of
the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If
a Restricted Subsidiary is designated as an Unrestricted Subsidiary the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as
of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one
or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
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Any designation of a Subsidiary
of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution
of the Board of Directors giving effect to such designation and an Officers’ Certificate and Opinion of Counsel certifying that
such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary
of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof,
the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness
by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only
be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation
had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would result following
such designation.
Notwithstanding anything to
the contrary set forth in this Indenture, no Subsidiary of the Company that owns Material Intellectual Property may be designated as an
Unrestricted Subsidiary.
Section 4.21 Effectiveness
of Covenants.
(a) If
after the date of this Indenture, (1) the Notes have an Investment Grade Rating from two of the Rating Agencies and (2) no Default
has occurred and is continuing under this Indenture, then, the Company and its Restricted Subsidiaries will not be subject to the following
provisions of this Indenture (collectively, the “Suspended Covenants”):
(1) Section 4.07;
(2) Section 4.08;
(3) Section 4.09;
(4) Section 4.10;
(5) Section 4.11;
(6) Section 4.15;
and
(7) Section 5.01(b)(4).
(b) If
at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency, then the Suspended Covenants
will thereafter be reinstated with respect to future events (the “Reinstatement Date”), unless and until the Notes
subsequently attain an Investment Grade Rating from two of the Rating Agencies and no Default or Event of Default is in existence (in
which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from
two of the Rating Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event
of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended
Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring
during the Suspension Period (as defined below), or any actions taken at any time pursuant to any contractual obligation arising prior
to the Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants
remained in effect during such period. The period of time between the date of suspension of the covenants and the Reinstatement Date is
referred to as the “Suspension Period.” The Company will notify the Trustee of the commencement or termination of any
Suspension Period.
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(c) In
the event of any reinstatement, all Indebtedness incurred during the Suspension Period will be classified to have been incurred pursuant
to Section 4.09(b)(2) hereof and all Restricted Payments made after such reinstatement will be calculated as though the limitations
contained in Section 4.07 hereof had been in effect prior to, but not during, the Suspension Period.
(d) For
purposes of Section 4.08 hereof, on the Reinstatement Date, any consensual encumbrances or restrictions of the type specified in
Section 4.08(a)(1), 4.08(a)(2) or 4.08(a)(3) hereof entered into during the Suspension Period will be deemed to have been
in effect on the Issue Date, so that they are permitted under Section 4.08(a) hereof.
(e) For
purposes of Section 4.11 hereof, any Affiliate Transaction entered into after the Reinstatement Date pursuant to a contract, agreement,
loan, advance or guaranty with, or for the benefit of, any Affiliate of the Company entered into during the Suspension Period will be
deemed to have been in effect as of the Issue Date for purposes of Section 4.11(b)(6) hereof.
(f) During
any period when the Suspended Covenants are suspended, the Board of Directors of the Company may not designate any of the Subsidiaries
of the Company as Unrestricted Subsidiaries pursuant to this Indenture.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation,
or Sale of Assets.
The Company will not, directly
or indirectly:
(a) consolidate
or merge with or into another Person (whether or not the Company is the surviving entity); or
(b) sell,
assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets (such amounts to be computed on
a consolidated basis) of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:
(1) either:
(x) the Company is the surviving corporation; or (y) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is either (i) a
corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia or (ii) a
partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or
the District of Columbia that has at least one Restricted Subsidiary that is a corporation organized or existing under the laws of the
United States, any state of the United States or the District of Columbia, which corporation becomes the co-issuer of the Notes pursuant
to a supplemental indenture reasonably satisfactory to the Trustee;
61
(2) the Person
formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes by supplemental indenture all the obligations of the Company under the Notes and
this Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately
after such transaction, no Default or Event of Default exists;
(4) the Company
or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment,
transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and
any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, either:
(A) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof.
(B) have
a Fixed Charge Coverage Ratio that is equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such
consolidation, merger, sale, assignment, transfer, conveyance or other disposition; and
(5) the Company
or the surviving entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and an Officers’
Certificate that all conditions precedent in this Indenture relating to such transaction have been satisfied.
In addition, the Company will
not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as
a whole, in one or more related transactions, to any other Person, other than in compliance with this Section 5.01.
This Section 5.01 will
not apply to:
(1) a merger
of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or
(2) any consolidation
or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Restricted
Subsidiaries.
Section 5.02 Successor Corporation
Substituted.
Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets
of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor
Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company”
shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the principal of, premium on, if any, and interest, if any, on, the Notes except
in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions
of, Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following will
be an “Event of Default”:
(1) default
for 30 consecutive days in the payment when due of interest on the Notes;
(2) default
in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure
by the Company or any of its Restricted Subsidiaries for 60 days after written notice to the Company by the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the agreements
in this Indenture;
(4) default
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that
default:
(A) is
caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”); or
(B) results
in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount
of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $20.0 million or more;
(5) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $20.0 million (net of any amount covered by insurance from an insurer that has not denied liability therefor), which judgments
are not paid, discharged or stayed for a period of 60 days after their entry;
(6) except
as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any
reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations
under its Note Guarantee; or
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(7) (i) the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary case,
(C) consents
to the appointment of a custodian of it or for all or substantially all of its property,
(D) makes
a general assignment for the benefit of its creditors, or
(E) generally
is not paying its debts as they become due; or
(ii) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(B) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary; or
(C) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed
and in effect for 60 consecutive days.
Any notice of Default, notice
of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action in connection
with a Default (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”)
must be accompanied by a written representation from each such Holder to the Company and the Trustee that such Holder is not (or, in the
case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such
Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder
Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise
ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed at the time of providing a Noteholder Direction
to covenant to provide the Company with such other information as the Company may reasonably request from time to time in order to verify
the accuracy of such Holder’s Position Representation within five (5) Business Days of request therefor (a “Verification
Covenant”). In any case in which the Holder of the Notes is DTC or its nominee, any Position Representation or Verification
Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled
to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee.
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If, following the delivery
of a Noteholder Direction, but prior to the acceleration of the Notes, the Company determines in good faith that there is a reasonable
basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an
Officers’ Certificate stating that the Company has instituted litigation with a court of competent jurisdiction seeking a determination
that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default
that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and
the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable
determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to
acceleration of the Notes, the Company provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to
satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with
respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted
and any remedy stayed until such time as the Company provides the Trustee with an Officers’ Certificate that the Verification Covenant
has been satisfied; provided that the Company shall promptly deliver such Officers’ Certificate to the Trustee upon becoming
aware that the Verification Covenant has been satisfied. Any breach of the Position Representation (as evidenced by an Officers’
Certificate delivered to the Trustee) shall result in such Holder’s participation in such Noteholder Direction being disregarded;
and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder
Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio,
with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed
not to have received such Noteholder Direction or any notice of such Default or Event of Default; provided, however, this shall
not invalidate any indemnity and/or security provided by the Directing Holders of the Notes to the Trustee which obligations shall continue
to survive.
With their acquisition of
the Notes, each Holder and subsequent purchaser of the Notes consents to the delivery of its Position Representation by the Trustee to
the Company in accordance with the terms of this Section. Each Holder and subsequent purchaser of the Notes waives any and all claims,
in law and/or in equity, against the Trustee and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees
that the Trustee will not be liable for any action that the Trustee takes in accordance with this Section, or arising out of or in connection
with following instructions or taking actions in accordance with a Noteholder Direction.
Other than in connection with
actions resulting from the gross negligence or willful misconduct of the Trustee, the Company hereby waives any and all claims, in law
and/or in equity, against the Trustee, and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that
the Trustee will not be liable for any action that the Trustee takes in accordance with this Section, or arising out of or in connection
with following instructions or taking actions in accordance with a Noteholder Direction.
For the avoidance of doubt,
the Trustee will treat all Holders of the Notes equally with respect to their rights under this Section. In connection with the requisite
percentages required under this Indenture to exercise remedies, the Trustee shall be entitled to treat all outstanding Notes equally irrespective
of any Position Representation in determining whether the requisite percentage has been obtained with respect to the initial delivery
of the Noteholder Direction. The Company agrees that any and all other actions that the Trustee takes or omits to take under this Section and
all fees, costs and expenses of the Trustee and its agents and counsel arising as a result of, or in connection with, the application
of the foregoing provisions shall be covered by the Trustee related expense and indemnity provisions in this Indenture.
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Section 6.02 Acceleration.
In the case of an Event of
Default specified in clause (7) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare
all the Notes to be due and payable immediately.
Section 6.03 Other Remedies.
If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest,
if any, on, the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past
Defaults.
The Holders of a majority
in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind
an acceleration or waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default
or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes (except nonpayment of principal
of, premium on, if any, or interest, if any, on the Notes that has become due solely because of the acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
The Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred on it. However, (i) the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee determines in good faith may be prejudicial to the rights of
other Holders or that may involve the Trustee in personal liability (ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 6.06 Limitation on
Suits.
No Holder may pursue any remedy
with respect to this Indenture or the Notes unless:
(1) such Holder
has previously given the Trustee notice that an Event of Default is continuing;
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(2) Holders
of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;
(3) such Holders
have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
(4) the Trustee
has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5) Holders
of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such
request within such 60-day period.
A Holder of a Note may not
use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a
Note (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Holders). In the event of any Event of Default specified in Section 6.01(4) above, such Event
of Default and all consequences thereof (excluding any resulting Payment Default, other than as a result of acceleration of the Notes)
shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days (or such
longer period as may be provided for cure of the default in the agreement under which such default may arise) after such Event of Default
arose:
(1) the
Indebtedness or Guarantee that is the basis for such Event of Default has been discharged;
(2) Holders
thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that
is the basis for such Event of Default has been cured.
Section 6.07 Rights of Holders
to Receive Payment.
Notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium on, if any, and interest, if
any, on, the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit
by Trustee.
If an Event of Default specified
in Sections 6.01(1) or 6.01(2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of principal of, premium and interest remaining unpaid on,
the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
Section 6.09 Trustee May File
Proofs of Claim.
The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any
money or property pursuant to this Article 6, it shall pay out the money and property in the following order:
First: to
the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to
Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, if any, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively;
Third: without
duplication, to the Holders for any other Obligations owing to the Holders under this Indenture and the Notes; and
Fourth: to
the Company or to such party as a court of competent jurisdiction shall direct.
The
Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for
Costs.
In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court
in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(1) the duties
of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However,
in the case of certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine
the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) this paragraph
does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee
will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee
will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(f) The
Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
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Section 7.02 Rights of Trustee.
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel will be full and complete authorization
and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with
due care. No Depositary shall be deemed an Agent, custodian or nominee and the Trustee shall not be responsible for any act or omission
by any Depositary.
(d) The
Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed
by an Officer of the Company.
(f) The
Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities
and expenses that might be incurred by it in compliance with such request or direction.
(g) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless actual written notice of such Default or Event of
Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
(i) The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
(j) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder.
Section 7.03 Individual Rights
of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also
subject to Section 7.10 hereof.
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Section 7.04 Trustee’s
Disclaimer.
The Trustee will not be responsible
for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s
use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and
it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default
occurs and is continuing and if written notice of such is received by a Responsible Officer of the Trustee, the Trustee will send to Holders
a notice of the Default or Event of Default within 90 days after it receives such notice. Except in the case of a Default or Event of
Default in payment of principal of, premium on, if any, or interest, if any, on, any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 [Reserved].
[Reserved]
Section 7.07 Compensation
and Indemnity.
(a) The
Company will pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree in writing from time to time. The Trustee’s compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable and documented disbursements,
advances and expenses incurred or made by it in addition to the compensation for its services; provided, however, that the Company
need not reimburse any expense or indemnity against any loss or liability determined to have been caused by the Trustee’s own negligence
or willful misconduct. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s agents
and counsel.
(b) The
Company and the Guarantors, jointly and severally, will indemnify the Trustee and its officers, directors, employees, and agents (in any
capacity under this Indenture) against any and all losses, liabilities, claims, costs, damages or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under this Indenture, including the reasonable costs, fees and
expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against
any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall have been caused
by its own negligence or willful misconduct. The Trustee will notify the Company promptly of any claim of which it has received notice
for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors
of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The
Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
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(c) The
obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07 until payment in full of such payment
obligations, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held
in trust to pay principal of, premium on, if any, or interest, if any, on, particular Notes.
(e) When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(7) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses
of administration under any Bankruptcy Law.
Section 7.08 Replacement of
Trustee.
(a) A
resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.
(b) The
Trustee may resign in writing at any time and be discharged from the trust hereby created upon 30 days’ written notice to the Company.
The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying with 10 days
prior written notice the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee
fails to comply with Section 7.10 hereof;
(2) the Trustee
is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian
or public officer takes charge of the Trustee or its property; or
(4) the Trustee
becomes incapable of acting.
(c) If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of
the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
(d) If
a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition at the expense of the Company
any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If
the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation
or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will send a notice of its succession to Holders. The retiring Trustee, upon payment
of its charges hereunder, will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
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Section 7.09 Successor Trustee
by Merger, etc.
If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility;
Disqualification.
There will at all times be
a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal
or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published
annual report of condition.
Section 7.11 [Reserved]
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect
Legal Defeasance or Covenant Defeasance.
The Company may at any time,
at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance
and Discharge.
Upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations
with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter
be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred
to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights
of Holders of outstanding Notes to receive payments in respect of the principal of, premium on, if any, or interest, if any, on, such
Notes when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Company’s
obligations with respect to such Notes under Article 2 and Section 4.02 hereof;
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(3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants
contained in Sections 3.09, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.17, 4.19 and 4.20 hereof and clause (4) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes
will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding
Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition
or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to
comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder
of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(3) through 6.01(7) hereof will not constitute Events of Default.
Section 8.04 Conditions to
Legal or Covenant Defeasance.
In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company
must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities,
or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal
firm or independent registered public accounting firm, to pay the principal of, premium on, if any, and interest, if any, on, the outstanding
Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether
the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in the
case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel (subject to customary
assumptions and exceptions) confirming that:
(A) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(B) since
the date of this Indenture, there has been a change in the applicable federal income tax law,
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in either case to the effect that, and
based thereon such Opinion of Counsel (subject to customary assumptions and exceptions) shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(3) in the
case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel (subject to customary
assumptions and exceptions) confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default
or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and in each
case the granting of Liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default
under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(5) such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture and agreements governing other Indebtedness being defeased, discharged or replaced) to which the
Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company
must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring
the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the
Company or others; and
(7) the Company
must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel (subject to customary assumptions and exceptions),
each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in
respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest,
if any, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.
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Notwithstanding anything in
this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be
the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to
Company.
Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any, or interest,
if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest, if any, has become due
and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder
of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent
is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees
will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if any, or interest, if any, on, any Note following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from
the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent
of Holders.
Notwithstanding Section 9.02
of this Indenture, the Company, the Guarantors and the Trustee may amend, modify or supplement this Indenture, the Notes or the Note Guarantees
without the consent of any Holder:
(1) to cure
any ambiguity, omission, defect or inconsistency;
(2) to provide
for uncertificated Notes in addition to or in place of certificated Notes;
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(3) to provide
for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees pursuant
to Article 5 or Article 11 hereof;
(4) to make
any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights of any
such Holder under this Indenture, the Notes or the Note Guarantees;
(5) [Reserved];
(6) to comply
with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act of 1939;
(7) to conform
the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of Notes” section of the
Company’s offering memorandum dated June 3, 2026, relating to the initial offering of the Notes, to the extent that such provision
in that “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Note Guarantees
or the Notes, which intent may be evidenced by an Officers’ Certificate to that effect;
(8) to provide
for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof;
(9) to comply
with the procedures of DTC or the Trustee with respect to the provisions of this Indenture and the Notes relating to transfers and exchanges
of Notes or beneficial interests in the Notes; or
(10) to evidence
the release of any Guarantor permitted to be released under the terms of this Indenture or to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.
Section 9.02 With Consent
of Holders.
Except as provided below in
this Section 9.02, the Company, the Guarantors and the Trustee may amend, modify or supplement this Indenture (including, without
limitation, Section 3.09, 4.10 and 4.15 hereof), the Notes or the Note Guarantees with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes),
and, subject to Sections 6.04 and 6.07 hereof, any past or existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium on, if any, or interest, if any, on, the Notes, except a Payment Default resulting from an
acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived
with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation,
Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer
or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding”
for purposes of this Section 9.02.
Upon the request of the Company,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt
by the Trustee of the documents described in Sections 7.02, 9.06, 13.04 and 13.05 hereof, the Trustee will join with the Company and the
Guarantors in the execution of the documentation effecting such amendment, modification or supplement unless such amendment, modification
or supplement directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such documentation.
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It is not necessary for the
consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, modification, supplement
or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, modification,
supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders affected thereby a notice briefly
describing the amendment, modification, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any documentation effecting such amendment, modification, supplement or waiver.
However, without the consent
of each Holder affected, an amendment, modification, supplement or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment, modification, supplement or waiver;
(2) reduce
the principal of or change the fixed maturity of any Notes or alter the provisions with respect to the redemption of the Notes (except
with respect to Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce
the rate of or change the time for payment of interest, including default interest, on any Note;
(4) waive a
Default or Event of Default in the payment of principal of, or premium, if any, or interest on, the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the Payment
Default that resulted from such acceleration);
(5) make any
Notes payable in money other than that stated in the Notes;
(6) make any
change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal
of, or interest or premium, if any, on, the Notes;
(7) waive a
redemption payment with respect to any Notes (other than a payment required by Sections 3.09, 4.10 or 4.15 hereof);
(8) release
any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture;
(9) make any
change in the provisions of the Indenture that would contractually subordinate the Notes or the Note Guarantees in right of payment to
any other Indebtedness; or
(10) make any
change in the preceding amendment, modification, supplement and waiver provisions that requires each Holder’s consent.
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Section 9.03 [Reserved].
[Reserved]
Section 9.04 Revocation and
Effect of Consents.
Until an amendment, modification,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to
its Note if the Trustee receives written notice of revocation before the date the amendment, modification, supplement or waiver becomes
effective. An amendment, modification, supplement or waiver becomes effective in accordance with its terms and thereafter binds every
Holder.
Section 9.05 Notation on or
Exchange of Notes.
The Trustee may place an appropriate
notation about an amendment, modification, supplement or waiver on any Note thereafter authenticated. The Company, in exchange for all
Notes, may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, modification,
supplement or waiver.
Failure to make the appropriate
notation or issue a new Note will not affect the validity and effect of such amendment, modification, supplement or waiver.
Section 9.06 Trustee to Sign
Amendments, etc.
The Trustee will sign any
amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. In executing any amended or supplemental indenture, the Trustee shall be
provided with and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required
by Section 13.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10
[Reserved]
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject
to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee, to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal
of, premium on, if any, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest, if any, on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
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(2) in case
of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated
to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The
Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.
(c) If
any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each
Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration
of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due
and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 11.02 Limitation on
Guarantor Liability.
Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited
to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
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Section 11.03 Execution and
Delivery of Note Guarantee.
To evidence its Note Guarantee
set forth in Section 11.01 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form
attached as Exhibit B hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 11.01 hereof will remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Note Guarantee.
If an Officer whose signature
is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note
Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Note by
the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
In the event that the Company
or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if required by Section 4.19
hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.19 hereof and this Article 11,
to the extent applicable.
Neither
the Company nor any Guarantor shall be required to make a notation on the Notes to reflect a Note Guarantee or any release, termination
or discharge thereof.
Section 11.04 Guarantors May Consolidate, etc.,
on Certain Terms.
Except as otherwise provided
in Section 11.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than (i) the Company or
another Guarantor or (ii) an Affiliate of the Company solely for the purpose of reincorporating or reorganizing in the United States
or any state thereof, unless:
(1) immediately
after giving effect to such transaction, no Default or Event of Default exists; and
(2) either:
(a) subject
to Section 11.05 hereof, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) assumes all the obligations of that Guarantor under this Indenture, its Note
Guarantee on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory
to the Trustee; or
(b) the
Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without
limitation, Section 4.10 hereof.
In case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee
and reasonably satisfactory in form and substance to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed
to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
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Except as set forth in Articles
4 and 5 hereof, and notwithstanding clauses 2(a) and (b) above, nothing contained in this Indenture or in any of the Notes will
prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
Section 11.05 Releases.
(a) In
the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation
or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary
of the Company, then the Person acquiring the property will be automatically released and relieved of any obligations under the Note Guarantee;
(b) In
the event of any sale or other disposition of all of the Capital Stock of any Guarantor to a Person that is not (either before or after
giving effect to such transaction) the Company or a Restricted Subsidiary of the Company and such Guarantor ceases to be a Restricted
Subsidiary of the Company as a result of the sale or other disposition, then such Guarantor will be automatically released and relieved
of any obligations under its Note Guarantee;
provided, in both cases, that the Net Proceeds
of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation
Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without
limitation Section 4.10 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.
(c) Upon
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture,
such Guarantor will be released and relieved of any obligations under its Note Guarantee.
(d) Upon
Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance
with Article 12 hereof, each Guarantor will be automatically released and relieved of any obligations under its Note Guarantee.
(e) If
such Guarantor no longer constitutes a Domestic Subsidiary, such Guarantor will be automatically released and relieved of any obligations
under its Note Guarantee.
(f) If determined in
good faith by the Company that a liquidation, dissolution or merger out of existence of such Guarantor is in the best interests of the
Company and is not materially disadvantageous to the Holders, such Guarantor will be automatically released and relieved of any obligations
under its Note Guarantee.
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Any
Guarantor not released from its obligations under its Note Guarantee as provided in this Section 11.05 will remain liable for the
full amount of principal of, premium on, if any, and interest, if any, on, the Notes and for the other obligations of any Guarantor under
this Indenture as provided in this Article 11.
ARTICLE 12
Satisfaction and Discharge
Section 12.01 Satisfaction
and Discharge.
This
Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(a) all
Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment
money has been deposited in trust or segregated and held in trust by the Company or any Guarantor and thereafter repaid to the Company
or discharged from their trust, have been delivered to the Trustee for cancellation; or
(b) all
Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of
redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, without consideration of any reinvestment of interest, to
pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and
interest, if any, to the date of maturity or redemption;
(2) in respect
of subclause (b) of clause (1) of this Section 12.01, no Default or Event of Default has occurred and is continuing on
the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit
and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit
will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound (other than with respect to the borrowing of funds to be applied
concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other
Indebtedness, and in each case the granting of Liens to secure such borrowings);
(3) the Company
or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and
(4) the Company
has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes
at maturity or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers’
Certificate and an Opinion of Counsel (subject to customary assumptions and exceptions) to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
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Notwithstanding
the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will survive. In addition, nothing in this
Section 12.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction
and discharge of this Indenture.
Upon satisfaction of the conditions
set forth herein and upon written request of the Company, the Trustee shall acknowledge in writing the satisfaction and discharge of this
Indenture.
Section 12.02 Application
of Trust Money.
Subject
to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held
in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any, and interest, if any, for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
If
the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 hereof by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium on, if any, or interest, if any, on, any Notes because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by
the Trustee or Paying Agent.
Notwithstanding
anything in this Article 12 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of
the Company any money or non-callable Government Securities held by it as provided in Section 12.01 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
are in excess of the amount thereof that would then be required to be deposited to effect a discharge in accordance with this Article 12.
ARTICLE 13
MISCELLANEOUS
Section 13.01 [Reserved].
[Reserved]
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Section 13.02 Notices.
Any
notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person
or by first class mail (registered or certified, return receipt requested), electronic transmission or overnight air courier guaranteeing
next day delivery, to the others’ address:
If to the Company and/or any Guarantor:
B&G Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
Attention: Executive Vice President, General Counsel, Secretary and Chief Compliance Officer
Email: corporatesecretary@bgfoods.com
With a copy to:
Dechert LLP
Cira Centre
2929Arch Street
Philadelphia, PA 19104
Attention: Stephen Leitzell, Esq.
Email: stephen.leitzell@dechert.com
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corporate Trust Administration
Email: Logan.Zamperini@bny.com
The
Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices
or communications.
All
notices and communications (other than those sent to the Trustee and the Holders) will be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if delivered by electronic submission; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery. All notices and communications will be deemed to have been duly given when received by a Responsible
Officer of the Trustee.
Any
notice or communication to a Holder will be delivered electronically or mailed by first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
85
The
Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”)
given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide
to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”)
and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever
a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and
the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed
controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions
and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the
incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring
that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible
to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt
by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written
instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the
Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse
by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting
Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by
the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide
to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee
immediately upon learning of any compromise or unauthorized use of the security procedures.
Notwithstanding
any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice
of redemption or repurchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given
to DTC (or its designee) pursuant to the standing instructions from DTC or its designee, including by electronic mail in accordance with
accepted practices at DTC.
If
a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If
the Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.
Section 13.03 [Reserved].
[Reserved]
Section 13.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Company and/or any Guarantor to the Trustee to take any action under this Indenture, the Company and/or
any Guarantor shall furnish to the Trustee:
(1) an Officers’
Certificate (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion
of Counsel (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with,
provided that
an issuer of an Opinion of Counsel may rely as to matter of fact on an Officers’ Certificate or a certificate of a public official.
86
Section 13.05 Statements Required
in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:
(1) a statement
that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based;
(3) a statement
that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement
as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06 Rules by
Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 13.07 No Personal
Liability of Directors, Officers, Employees, Affiliates and Stockholders.
No
past, present or future director, officer, employee, direct or indirect incorporator, Affiliate, stockholder or controlling Person, of
the Company or any Guarantor, as such, or any successor entity, will have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 13.08 Governing Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section 13.09 No Adverse Interpretation
of Other Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.10 Successors.
All
agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will
bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 11.05
hereof.
87
Section 13.11 Severability.
In
case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.
Section 13.12 Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the
same agreement. Delivery of an executed counterpart of a signature page to this Indenture by .pdf attachment, email or other
electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 13.13 Table of Contents,
Headings, etc.
The
Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions
hereof.
Section 13.14 Waiver of Jury
Trial.
EACH
OF THE COMPANY, THE GUARANTORS, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.
Section 13.15 Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
pandemics, epidemics or other forms of infectious diseases or recognized public health emergencies, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or
hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.16 Consent to Jurisdiction.
Any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth in Section 13.02 hereof shall be effective
service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim any such suit, action or other proceeding has been
brought in an inconvenient forum.
88
Section 13.17 Foreign Account
Tax Compliance Act (FATCA).
Upon
reasonable request of The Bank of New York Mellon Trust Company, N.A., the Company agrees (i) to provide such reasonable information
as it has in its possession to enable The Bank of New York Mellon Trust Company, N.A. to determine whether any payments pursuant to the
Indenture are subject to the withholding requirements described in Section 1471(b) of the Code or otherwise imposed pursuant
to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable
Law”); provided that, the obligations imposed on the Company under this paragraph are limited to the extent that
the provision of such information to The Bank of New York Mellon Trust Company, N.A. will not result in any breach of this Indenture,
the Notes or any applicable law, and (ii) that The Bank of New York Mellon Trust Company, N.A. shall be entitled to make any withholding
or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
[Signatures on following page]
89
SIGNATURES
Dated as of June 10, 2026
B&G FOODS, INC.
By:
/s/ Bruce C. Wacha
Name:
Bruce C. Wacha
Title:
Executive Vice President of Finance and Chief Financial Officer
B&G FOODS NORTH AMERICA, INC.
B&G FOODS SNACKS, INC.
BEAR CREEK COUNTRY KITCHENS, LLC
CLABBER GIRL CORPORATION
SPARTAN FOODS OF AMERICA, INC.
VICTORIA FINE FOODS, LLC,
WILLIAM UNDERWOOD COMPANY
as Guarantors
By:
/s/ Bruce C. Wacha
Name:
Bruce C. Wacha
Title:
Executive Vice President of Finance and Chief Financial Officer
[Signature Page to Indenture]
The Bank of New York
Mellon Trust Company, N.A.,
as Trustee
By:
/s/ Nathaniel Henkle
Name:
Nathaniel Henkle
Title:
Vice President
[Signature Page to Indenture]
EXHIBIT A
FORM OF
NOTE
[Face of Note]
CUSIP/ISIN ____________
11.00% Senior Notes due 2031
No.___
$____________
B&G FOODS, INC., a Delaware corporation, promises to pay
to Cede & Co., or registered assigns, the principal sum of ______________________________________________________ DOLLARS
on ______________.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated:
A-1
B&G FOODS, INC.
By:
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
By:
Authorized Signatory
Dated:
A-2
[Back of Note]
11.00% Senior Notes due 2031
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
[Restricted Notes Legend]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY
WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY WILL NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE
DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) RESELL OR OTHERWISE TRANSFER THIS SECURITY] [IN THE CASE OF REGULATION S NOTES: 40 DAYS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES 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] EXCEPT (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES
TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (2) TO THE COMPANY OR ANY SUBSIDIARY THEREOF OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH (A)(1)(c) OR (d) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY
OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER
IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
A-3
[OID Legend]
THE FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR
U.S. FEDERAL INCOME TAX PURPOSES. THIS NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (“OID”) WITHIN THE MEANING
OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND THIS LEGEND IS REQUIRED BY SECTION 1275(c) OF
THE CODE. HOLDERS MAY OBTAIN INFORMATION REGARDING THE AMOUNT OF ANY OID, THE ISSUE PRICE, THE ISSUE DATE AND THE YIELD TO MATURITY
RELATING TO THE NOTE BY CONTACTING THE COMPANY AT THE COMPANY’S CORPORATE ADDRESS.
Capitalized terms used herein
have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) Interest.
B&G Foods, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 11.00% per annum from June 10, 2026 until maturity. The Company will pay interest, if any, semi-annually in arrears
on June 15 and December 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each,
an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date
shall be December 15, 2026. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in
effect to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2) Method
of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders
at the close of business on the June 1 or December 1 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect
to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the
Paying Agent and Registrar within or without the City and State of New York, or, at the option of the Company, payment of interest, if
any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment
by wire transfer of immediately available funds will be required with respect to principal of, premium on, if any, interest, if any, on,
all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent.
Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.
A-4
(3) Paying
Agent and Registrar. Initially, The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders. The Company or
any of its Subsidiaries may act as Paying Agent or Registrar.
(4) Indenture.
The Company issued the Notes under an indenture dated as of June 10, 2026 (the “Indenture”) among the Company,
the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms,
and Holders are referred to the Indenture for a statement of such terms. However, to the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are senior unsecured
obligations of the Company. [This Note is one of the Initial Notes referred to in the Indenture. ]The Indenture permits the issuance of
Additional Notes subject to compliance with certain conditions. The Notes include the Initial Notes and any Additional Notes. The Initial
Notes and any Additional Notes are treated as a single class of securities under the Indenture.
(5) Optional
Redemption.
(a) At
any time prior to June 15, 2028, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount
of Notes issued under the Indenture (including Additional Notes, if any), upon not less than 10 nor more than 60 days’ notice, at
a redemption price equal to 111.00% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption
date, (subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date) in an amount
not to exceed the net cash proceeds of one or more Equity Offerings of the Company; provided that:
(i) at
least 50% of the aggregate principal amount of Notes originally issued under the Indenture (excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(ii) the
redemption occurs within 90 days of the date of the closing of such Equity Offering.
(b) At
any time prior to June 15, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than
10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment date.
(c) Except
pursuant to the preceding paragraphs, the Notes will not be redeemable at the Company’s option prior to June 15, 2028.
A-5
(d) On
or after June 15, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued
and unpaid interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning
on June 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year
Percentage
2028
105.500 %
2029
102.750 %
2030 and thereafter
100.000 %
Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption
on the applicable redemption date.
(e) Any
redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including,
but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. In addition, the Company
may provide in any notice of redemption that payment of the redemption price and the performance of its obligations with respect to such
redemption may be performed by another person; provided, however, that the Company shall remain obligated to pay the redemption
price and perform its obligations with respect to such redemption in the event such other person fails to do so. Notice of any redemption
in respect of an Equity Offering may be given prior to completion thereof. Further, the redemption date of any redemption that is subject
to satisfaction of one or more conditions precedent may, in the Company’s discretion, be delayed until such time as any or all such
conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and any notice with
respect to such redemption may be modified or rescinded in the event that any or all such conditions shall not have been satisfied (or
waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed (which may exceed 60 days from
the date of the redemption notice in such case). In addition, such notice of redemption may be extended if such conditions precedent have
not been satisfied or waived by the Company by providing notice to the Holders.
(6) Mandatory
Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
However, for the avoidance of doubt, the Company may be required to offer to purchase Notes as described elsewhere in the Indenture. The
foregoing shall be without prejudice to the Company’s ability, at any time and from time to time, to purchase Notes in the open
market or otherwise.
(7) Repurchase
at the Option of Holder.
(a) If
a Change of Control occurs, each Holder will have the right to require the Company to repurchase all or any part (equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to the terms set forth herein (a “Change
of Control Offer”). In the Change of Control Offer (subject to the conditions required by applicable law, if any), the Company
will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date (the “Change of Control Payment”). Within 30 days following any
Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
A-6
(b) If
the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within 30 days of each date on which the aggregate
amount of Excess Proceeds exceeds $25.0 million, the Company will make an Asset Sale Offer to all
Holders, and all other Pari Passu Obligations which require such offer pursuant to provisions similar to those set forth in the Indenture
with respect to offers, to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum
principal amount of Notes and such other Pari Passu Obligations (plus all accrued interest on the Indebtedness and the amount of all fees
and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds.
The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the
date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount
of Notes and other Pari Passu Obligations tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Pari Passu Obligations to be purchased on a pro
rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount
of Excess Proceeds will be reset at zero. Holders that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option
of Holder to Elect Purchase” attached to the Notes.
(8) Notice
of Redemption. At least 10 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed,
by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction and discharge of the Indenture pursuant to Articles 8 or 12 thereof. Any redemption or notice of any redemption may,
at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity
Offering, other offering or other corporate transaction or event. Notes and portions of Notes selected will be in amounts of $2,000 or
whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding
amount of Notes held by such Holder shall be redeemed or purchased.
(9) Denominations,
Transfer, Exchange. The Notes are in registered form and shall initially be in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and
the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange
or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
(10) Persons
Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders
have rights under the Indenture.
A-7
(11) Amendment,
Supplement and Waiver. The Indenture, the Notes and the Note Guarantees may be amended, modified or supplemented as provided
in the Indenture or otherwise in accordance with their respective terms.
(12) Defaults
and Remedies. The Notes will be subject to provisions with respect to Default, Events of Default and related remedies as provided
in the Indenture.
(13) Trustee
Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(14) No
Recourse Against Others. No past, present or future director, officer, employee, direct or indirect incorporator, Affiliate,
stockholder or controlling Person, of the Company or any Guarantor, as such, or any successor entity, will have any liability for any
obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal
securities laws.
(15) Authentication.
This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.
(16) Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
(17) CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
B&G Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
Attention: Executive Vice President of Finance
and Chief Financial Officer
A-8
Assignment
Form
To assign this Note, fill
in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D.
no.)
(Print or type assignee’s name, address and
zip code)
and irrevocably appoint___________________________________________________________________________________________________to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date: _______________
Your Signature:
(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-9
Option of
Holder to Elect Purchase
If you want to elect to have
this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
¨
Section 4.10 ¨ Section 4.15
If you want to elect to have
only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$_______________
Date: _______________
Your Signature:
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
Signature Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-10
Schedule
of Exchanges of Interests in the Global Note
The following exchanges of
a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global
Note or Certificated Note for an interest in this Global Note, have been made:
Date
of Exchange
Amount
of decrease in Principal Amount
at maturity of
this Global Note
Amount
of increase in Principal Amount
at maturity of
this Global Note
Principal
Amount at maturity of this Global Note following such decrease (or increase)
Signature
of authorized officer of Trustee or Custodian
A-11
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor
(which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set
forth in the Indenture and subject to the provisions in the indenture dated as of June 10, 2026 (the “Indenture”)
among B&G Foods, Inc. (the “Company”), the Guarantors party thereto and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium on, if
any, and interest, if any, on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment
of interest on over due principal of, premium on, if any, and interest, if any, on, the Notes, if any, if lawful, and the due and punctual
performance of all other obligations of the Company to the Holders and the Trustee all in accordance with the terms of the Indenture and
(b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligations of the Guarantors to the Holders and the Trustee pursuant to the Note Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.
Capitalized terms used but
not defined herein have the meanings given to them in the Indenture.
[Name of Guarantor(s)]
By:
Name:
Title:
B-1
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “Supplemental Indenture”), dated as of ________________, 20___, among __________________ (the
“Guaranteeing Subsidiary”), a subsidiary of B&G Foods, Inc. (or its permitted successor), a Delaware corporation
(the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of
New York Mellon Trust Company, N.A., as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an indenture (the “Indenture”), dated as of June 10, 2026 providing for
the issuance of 11.00% Senior Notes due 2031 (the “Notes”);
WHEREAS, the Indenture provides
that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant
to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01
of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary
and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof.
3. No
Recourse Against Others. No past, present or future director, officer, employee, incorporator, Affiliate, stockholder, controlling
Person or agent of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors
under the Notes, any Note Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
5. Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
C-1
6. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.
C-2
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: _______________, 20___
[Guaranteeing Subsidiary]
By:
Name:
Title:
B&G FOODS, INC.
By:
Name:
Title:
[Existing Guarantors]
By:
Name:
Title:
The
Bank of New York Mellon Trust Company, N.A.,
not
in its individual capacity but solely as Trustee
By:
Name:
Title:
C-3
EXHIBIT D
[FORM OF CERTIFICATE
TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
B&G Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
Attention: Executive
Vice President of Finance and Chief Financial Officer
The Bank of New York
Mellon Trust Company, N.A.
500 Ross Street, 12th
Floor
Pittsburgh, PA 15262
Attention: Corporate
Trust Administration
Re: B&G Foods, Inc., (“the Company”) 11.00% Senior Notes due 2031 (the “Notes”)
Ladies and Gentlemen:
In
connection with our proposed sale of $___________________ aggregate principal amount at maturity of the Notes, we hereby certify that
such transfer is being effected pursuant to and in accordance with Rule 144A (“Rule 144A”) under the United
States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we hereby further certify that
the Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its own account, or for one or more
accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such
Notes are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.
The
Company and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
D-1
EXHIBIT E
[FORM OF CERTIFICATE
TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
B&G Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
Attention: Executive
Vice President of Finance and Chief Financial Officer
The Bank of New York
Mellon Trust Company, N.A.
500 Ross Street, 12th
Floor
Pittsburgh, PA 15262
Attention: Corporate
Trust Administration
Re: B&G Foods, Inc., (“the Company”) 11.00% Senior Notes due 2031 (the “Notes”)
Ladies and Gentlemen:
In
connection with our proposed sale of $___________________ aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S (“Regulation S”) under the U.S. Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, we represent that:
(1) the
offer of the Notes was not made to a person in the United States;
(2) either
(a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither we nor any person acting on our behalf knows that the transaction has been prearranged
with a buyer in the United States;
(3) no
directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the
transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In
addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of Regulation
S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b) or
Rule 904(b), as the case may be.
The
Company and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
E-1
EX-99.1 — EXHIBIT 99.1 - PRESS RELEASE DATED JUNE 10, 2026
EX-99.1
Filename: tm2617391d1_ex99-1.htm · Sequence: 3
Exhibit 99.1
B&G Foods Closes $475 Million Private Offering of Senior Notes
due 2031
PARSIPPANY, N.J., June 10, 2026 — B&G Foods, Inc.
(NYSE: BGS) announced today that it has completed its previously announced offering of $475.0 million aggregate principal amount of 11.00% senior
notes due 2031 in a transaction exempt from registration under the Securities Act of 1933, as amended. The senior notes are guaranteed
on a senior unsecured basis by certain domestic subsidiaries of B&G Foods.
B&G Foods intends to use the net proceeds of the offering, together
with borrowings under its revolving credit facility and cash on hand, to redeem all $509.3 million aggregate principal amount of B&G Foods’
outstanding 5.25% senior notes due 2027 and pay related fees and expenses.
The senior notes and related guarantees were offered only to persons
reasonably believed to be qualified institutional buyers in reliance on an exemption from registration pursuant to Rule 144A under
the Securities Act, and to certain non-U.S. persons in transactions outside of the United States in reliance on Regulation S under the
Securities Act. The senior notes and the related guarantees have not been and will not be registered under the Securities Act, any state
securities laws or the securities laws of any other jurisdiction. Accordingly, the senior notes and the related guarantees may not be
offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities
Act and any applicable securities laws of any state or other jurisdiction.
This press release does not constitute a redemption notice with respect
to the 5.25% senior notes due 2027 and shall not constitute an offer to sell or the solicitation of an offer to buy the senior notes and
the related guarantees, nor shall there be any sale of the senior notes and the related guarantees in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state
or jurisdiction.
About B&G Foods, Inc.
Based in Parsippany, New Jersey, B&G Foods and its subsidiaries
manufacture, sell and distribute high-quality, branded shelf-stable and frozen foods across the United States, Canada and Puerto Rico.
With B&G Foods’ diverse portfolio of more than 50 brands you know and love, including B&G, B&M, Bear Creek,
College Inn, Cream of Wheat, Crisco, Dash, Green Giant, Kitchen Basics,
Las Palmas, Mama Mary’s, Maple Grove Farms, New York Style, Ortega,
Polaner, Spice Islands and Victoria, there’s a little something for everyone.
Forward-Looking Statements
Statements in this press release that are not statements of historical
or current fact constitute “forward-looking statements.” The forward-looking statements contained in this press release include,
without limitation, statements related to B&G Foods’ intended use of proceeds of the senior notes due 2031 offering, including
the redemption of all of the 5.25% senior notes due 2027. Such forward-looking statements involve known and unknown risks, uncertainties
and other unknown factors that could cause the actual results of B&G Foods to be materially different from the historical results
or from any future results expressed or implied by such forward-looking statements. In addition to statements that explicitly describe
such risks and uncertainties, readers are urged to consider statements labeled with the terms “believes,” “belief,”
“expects,” “projects,” “intends,” “anticipates,” “assumes,” “could,”
“should,” “estimates,” “potential,” “seek,” “predict,” “may,”
“will” or “plans” and similar references to future periods to be uncertain and forward-looking. Factors that may
affect actual results include, without limitation: B&G Foods’ substantial leverage, which may impact B&G Foods’
ability, among other things, to fund capital expenditures, working capital needs, dividend payments and acquisitions, and to obtain refinancing
or additional financing; B&G Foods’ ability to comply with the ratios or tests under its long-term debt agreements, including
the maximum consolidated leverage ratio and minimum consolidated interest coverage ratio under its credit agreement, which may be affected
not only by B&G Foods’ operating performance but also by events beyond B&G Foods’ control, including prevailing
economic, financial and industry conditions, and changes in interest rates; the effects of international trade disputes, tariffs, quotas,
and other import or export restrictions on B&G Foods’ procurement, sales and operations (including recent U.S. tariffs imposed
or threatened to be imposed on China, Canada and Mexico and other countries and retaliatory actions taken or threatened to be taken by
such countries); the effects of rising costs for and/or decreases in supply of B&G Foods’ commodities, ingredients, packaging,
other raw materials, distribution and labor; crude oil prices and their impact on distribution, packaging and energy costs; B&G Foods’
ability to successfully implement sales price increases and cost saving measures to offset any cost increases; intense competition, changes
in consumer preferences, demand for B&G Foods’ products and local economic and market conditions; B&G Foods’ continued
ability to promote brand equity successfully, to anticipate and respond to new consumer trends, to develop new products and markets, to
broaden brand portfolios in order to compete effectively with lower priced products and in markets that are consolidating at the retail
and manufacturing levels and to improve productivity; the ability of B&G Foods and its supply chain partners to continue to operate
manufacturing facilities, distribution centers and other work locations without material disruption, and to procure ingredients, packaging
and other raw materials when needed despite disruptions in the supply chain or labor shortages; the impact pandemics or disease outbreaks,
may have on B&G Foods’ business, including among other things, B&G Foods’ supply chain, manufacturing operations or
workforce and customer and consumer demand for B&G Foods’ products; B&G Foods’ ability to recruit and retain senior
management and a highly skilled and diverse workforce at B&G Foods’ corporate offices, manufacturing facilities and other work
locations despite a very tight labor market and changing employee expectations as to fair compensation, an inclusive and diverse workplace,
flexible working and other matters; the risks associated with the possible expansion of B&G Foods’ business through acquisitions
or reduction in size through divestitures; B&G Foods’ possible inability to successfully complete divestitures of non-core businesses,
including the pending divestiture of B&G Foods’ Green Giant and Le Sieur frozen and shelf-stable business in
Canada, to sharpen its focus, improve margins, reduce costs and reduce its long-term debt, and, if completed, B&G Foods’ possible
inability to achieve the expected margin improvements, cost savings and debt reduction; B&G Foods’ possible inability to identify
new acquisitions or to integrate recent or future acquisitions or B&G Foods’ failure to realize anticipated revenue enhancements,
cost savings or other synergies from recent or future acquisitions, including the College Inn and Kitchen Basics acquisition;
B&G Foods’ ability to successfully complete the integration of recent or future acquisitions into B&G Foods’ enterprise
resource planning (ERP) system; tax reform and legislation, including the effects of the U.S. Tax Cuts and Jobs Act and the One Big Beautiful
Bill Act, and any future tax reform or legislation; B&G Foods’ ability to access the credit markets and B&G Foods’
borrowing costs and credit ratings, which may be influenced by credit markets generally and the credit ratings of B&G Foods’
competitors; unanticipated expenses, including, without limitation, litigation or legal settlement expenses; the effects of currency movements
of the Canadian dollar and the Mexican peso as compared to the U.S. dollar; future impairments of B&G Foods’ goodwill, other
intangible assets, and tangible assets, such as property, plant, equipment or inventory, which impairments may be triggered if operating
results for any of B&G Foods’ brands deteriorate at rates in excess of its current projections, B&G Foods’ market
capitalization declines or discount rates change, even if due to macroeconomic factors, or may be triggered by divestitures, if divestiture
proceeds are less than the book value of the assets being divested; B&G Foods’ ability to protect information systems against,
or effectively respond to, a cybersecurity incident, other disruption or data leak; B&G Foods’ ability to successfully implement
B&G Foods’ sustainability initiatives and achieve B&G Foods’ sustainability goals, and changes to environmental laws
and regulations; B&G Foods’ ability to successfully adopt and utilize new technologies, such as artificial intelligence, including
machine learning and generative artificial intelligence; and other factors that affect the food industry generally, including: recalls
if products become adulterated or misbranded, liability if product consumption causes injury, ingredient disclosure and labeling laws
and regulations and the possibility that consumers could lose confidence in the safety and quality of certain food products; competitors’
pricing practices and promotional spending levels; fluctuations in the level of B&G Foods’ customers’ inventories and
credit and other business risks related to B&G Foods’ customers operating in a challenging economic and competitive environment;
and the risks associated with third-party suppliers and co-packers, including the risk that any failure by one or more of B&G Foods’
third-party suppliers or co-packers to comply with food safety or other laws and regulations may disrupt B&G Foods’ supply of
raw materials or certain finished goods products or injure B&G Foods’ reputation. The forward-looking statements contained
herein are also subject generally to other risks and uncertainties that are described from time to time in B&G Foods’ filings
with the Securities and Exchange Commission, including under Item 1A, “Risk Factors” in B&G Foods’ most recent Annual
Report on Form 10-K and in its subsequent reports on Forms 10-Q and 8-K. Investors are cautioned not to place undue reliance on any
such forward-looking statements, which speak only as of the date they are made. B&G Foods undertakes no obligation to publicly update
or revise any forward-looking statement, whether as a result of new information, future events or otherwise.
Contacts:
Investor Relations:
Media Relations:
ICR, Inc.
ICR, Inc.
Anna Kate Heller
Matt Lindberg
bgfoodsIR@icrinc.com
matthew.lindberg@icrinc.com
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The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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Local phone number for entity.
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No definition available.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
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Title of a 12(b) registered security.
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Name of the Exchange on which a security is registered.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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-Publisher SEC
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Trading symbol of an instrument as listed on an exchange.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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-Name Securities Act
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