Form 8-K
8-K — EQUINIX INC
Accession: 0001104659-26-092009
Filed: 2026-08-06
Period: 2026-08-06
CIK: 0001101239
SIC: 6798 (REAL ESTATE INVESTMENT TRUSTS)
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2622384d1_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2622384d1_ex1-1.htm)
EX-1.2 — EXHIBIT 1.2 (tm2622384d1_ex1-2.htm)
EX-4.3 — EXHIBIT 4.3 (tm2622384d1_ex4-3.htm)
EX-4.4 — EXHIBIT 4.4 (tm2622384d1_ex4-4.htm)
EX-4.5 — EXHIBIT 4.5 (tm2622384d1_ex4-5.htm)
EX-4.6 — EXHIBIT 4.6 (tm2622384d1_ex4-6.htm)
EX-5.1 — EXHIBIT 5.1 (tm2622384d1_ex5-1.htm)
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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 6, 2026
EQUINIX, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State
or other jurisdiction
of incorporation)
001-40205
(Commission
File Number)
77-0487526
(IRS
Employer
Identification No.)
One Lagoon Drive
Redwood City, California
94065
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s Telephone Number, Including Area Code: (650) 598-6000
(Former name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common Stock, $0.001
EQIX
The Nasdaq Stock Market LLC
0.250% Senior Notes due 2027
N/A
The Nasdaq Stock Market LLC
3.250% Senior Notes due 2029
N/A
The Nasdaq Stock Market LLC
3.250% Senior Notes due 2031
N/A
The Nasdaq Stock Market LLC
1.000% Senior Notes due 2033
N/A
The Nasdaq Stock Market LLC
3.650% Senior Notes due 2033
N/A
The Nasdaq Stock Market LLC
4.000% Senior Notes due 2034
N/A
The Nasdaq Stock Market LLC
3.625% Senior Notes due 2034
N/A
The Nasdaq Stock Market LLC
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 8.01 Other Events
Issuances of $850,000,000 Senior Notes due 2029, $850,000,000 Senior
Notes due 2031, $650,000,000 Senior Notes due 2033 and $650,000,000 Senior Notes due 2036
On August 6, 2026, Equinix, Inc. (“Parent”),
a Delaware corporation, issued and sold $850,000,000 aggregate principal amount of its 5.000% Senior Notes due 2029 (the “2029
Notes”), $650,000,000 aggregate principal amount of its 5.500% Senior Notes due 2033 (the “2033 Notes”)
and $650,000,000 aggregate principal amount of its 5.800% Senior Notes due 2036 (the “2036 Notes”), pursuant
to an underwriting agreement dated July 30, 2026, by and among Parent and the several underwriters named in Schedule II thereto.
Also on August 6, 2026, Equinix Europe 2 Financing Corporation LLC
(“Europe 2 Finco”), a Delaware limited liability company and an indirect, wholly-owned subsidiary of Parent,
issued and sold $850,000,000 aggregate principal amount of its 5.250% Senior Notes due 2031 (the “2031 Notes”,
and together with the 2029 Notes, the 2033 Notes and the 2036 Notes, the “Notes”), fully and unconditionally
guaranteed by Equinix, Inc. (the “Guarantee”, and together with the Notes, the “Securities”),
pursuant to an underwriting agreement dated July 30, 2026 among Europe 2 Finco, Parent and the several underwriters named in Schedule
II thereto. Subsequent to the offering of the 2031 Notes, Europe 2 Finco entered into cross-currency swaps with certain counterparties
to effectively swap the principal amount of Europe 2 Finco’s obligation under the 2031 Notes to Euros. On an after-swapped basis,
the 2031 Notes carry an effective interest rate of approximately 3.95% per annum.
The 2029 Notes, the 2033 Notes and the 2036 Notes were issued pursuant
to an indenture dated December 12, 2017 (the “Equinix, Inc. Base Indenture”) by and between Parent and U.S.
Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”),
as supplemented, in the case of the 2029 Notes, by the Twenty-First Supplemental Indenture dated August 6, 2026 by and between Parent
and the Trustee (the “2029 Notes Supplemental Indenture”), in the case of the 2033 Notes, by the Twenty-Second
Supplemental Indenture dated August 6, 2026 by and between Parent and the Trustee (the “2033 Notes Supplemental Indenture”),
and in the case of the 2036 Notes, by the Twenty-Third Supplemental Indenture dated August 6, 2026 by and between Parent and the Trustee
(the “2036 Notes Supplemental Indenture”).
The 2031 Notes were issued pursuant to an indenture dated March 18,
2024 (the “Europe 2 Finco Base Indenture”) by and among Europe 2 Finco, Parent and the Trustee, as supplemented
by the Ninth Supplemental Indenture dated August 6, 2026 by and among Europe 2 Finco, Parent and the Trustee (the “2031 Notes
Supplemental Indenture”).
The Equinix, Inc. Base Indenture and the Europe 2 Finco Base Indenture
are collectively referred to herein as the “Base Indentures.” The 2029 Notes Supplemental Indenture, the 2031
Notes Supplemental Indenture, the 2033 Notes Supplemental Indenture, and the 2036 Notes Supplemental Indenture are collectively referred
to herein as the “Supplemental Indentures.” Each Supplemental Indenture, together with the applicable Base Indenture,
is collectively referred to herein as an “Indenture” and together, the “Indentures”.
The 2029 Notes will bear interest at the rate of 5.000% per annum and
will mature on August 15, 2029. The 2031 Notes will bear interest at the rate of 5.250% per annum and will mature on August 15, 2031.
The 2033 Notes will bear interest at the rate of 5.500% per annum and will mature on August 15, 2033. The 2036 Notes will bear interest
at the rate of 5.800% per annum and will mature on August 15, 2036. Interest on the Notes is payable semi-annually on February 15 and
August 15 of each year, beginning on February 15, 2027.
Prior
to July 15, 2029 (the “2029 Par Call Date”) with respect to the 2029 Notes, June 15, 2033 (the “2033
Par Call Date”) with respect to the 2033 Notes and May 15, 2036 (the “2036 Par Call Date”) with
respect to the 2036 Notes, Parent may redeem the 2029 Notes, the 2033 Notes or the 2036 Notes at its option, in whole or in part, at any
time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted
to the redemption date (assuming the applicable notes matured on the relevant par call date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined in the preliminary prospectus supplement) plus 15 basis
points in the case of the 2029 Notes, 20 basis points in the case of the 2033 Notes and 20 basis points in the case of the 2036 Notes,
less (b) interest accrued to the date of redemption, and (2) 100% of the aggregate principal amount of the applicable Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On
or after the applicable par call date, Parent may redeem the 2029 Notes, the 2033 Notes or the 2036 Notes, at its option, in whole
or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the applicable
Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
Prior
to July 15, 2031 (the “2031 Par Call Date”) with respect to the 2031 Notes, Europe 2 Finco may redeem
the 2031 Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage
of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2031 Notes matured on the 2031 Par
Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the
preliminary prospectus supplement) plus 15 basis points, less (b) interest accrued to the date of redemption, and (2) 100% of the
aggregate principal amount of the 2031 Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon, if any, to but
excluding, the redemption date.
On
or after the 2031 Par Call Date, Europe 2 Finco may redeem the 2031 Notes, at its option, in whole or in part, at any time and
from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2031 Notes to be redeemed plus accrued
and unpaid interest thereon, if any, to but excluding, the redemption date.
Upon a change of control triggering event, as defined in the respective
Indentures, Parent will be required to make an offer to purchase the 2029 Notes, the 2033 Notes and the 2036 Notes and Europe 2 Finco
will be required to make an offer to purchase the 2031 Notes, in each case, at a purchase price equal to 101% of the principal amount
of the applicable series of Notes on the date of purchase, plus accrued interest, if any, to, but excluding, the date of purchase.
The 2029 Notes, the 2033 Notes and the 2036 Notes are Parent’s
general unsecured senior obligations and rank equally in right of payment with Parent’s existing and future senior indebtedness,
and are structurally subordinated to all existing and future indebtedness and other liabilities of any of Parent's subsidiaries. The 2029
Notes, the 2033 Notes and the 2036 Notes are not guaranteed by Parent’s subsidiaries, through which Parent currently conducts substantially
all of its operations.
The 2031 Notes are fully and unconditionally guaranteed on an unsecured
basis by Parent. The 2031 Notes are Europe 2 Finco’s unsecured senior obligations and rank equally in right of payment to any of
Europe 2 Finco’s existing and future unsecured senior indebtedness and are structurally subordinated to any existing and future
indebtedness and other liabilities of any of Europe 2 Finco’s subsidiaries, if any. In addition, Parent’s obligations under
the Guarantee ranks equally with all of its existing and future senior indebtedness and is effectively subordinated to all of the existing
and future secured indebtedness of Parent and structurally subordinated to all of the existing and future indebtedness and liabilities
of other subsidiaries of Parent.
The Indentures contain restrictive covenants relating to limitations
on: (i) liens; (ii) certain asset sales and mergers and consolidations; and (iii) sale and leaseback transactions, subject, in each case,
to certain exceptions.
The Indentures contain customary terms that upon certain events of
default occurring and continuing, either the Trustee or the holders of not less than 25% in aggregate principal amount of the 2029 Notes,
the 2031 Notes, the 2033 Notes or the 2036 Notes, as applicable, then outstanding may declare the principal of such series of Notes and
any accrued and unpaid interest through the date of such declaration immediately due and payable. In the case of certain events of bankruptcy
or insolvency relating to, in the case of the 2031 Notes, Europe 2 Finco, Parent or any of its Material Subsidiaries (as defined in the
2031 Notes Supplemental Indenture), and, in the case of the 2029 Notes, the 2033 Notes and the 2036 Notes, Parent or any of its Material
Subsidiaries (as defined in the Supplemental Indentures), the principal amount of the 2029 Notes, the 2031 Notes, the 2033 Notes and the
2036 Notes, as applicable, together with any accrued and unpaid interest through the occurrence of such event shall automatically become
and be immediately due and payable.
The above descriptions of the Indentures and the Securities are qualified
in their entirety by reference to the Base Indentures and the Supplemental Indentures. Copies of the Base Indentures, the Supplemental
Indentures, and the forms of the Notes are filed as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and 4.10 to this Current Report
on Form 8-K.
Copies of the opinion of Davis Polk & Wardwell LLP relating to
the validity of the Notes are incorporated by reference into the Registration Statement and are attached to this Current Report on Form
8-K as Exhibit 5.1.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit
No.
Description
1.1*
Underwriting Agreement, dated July 30, 2026 by and among Equinix, Inc., as issuer, and BNP Paribas Securities Corp., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC., HSBC Securities (USA) Inc. and MUFG Securities Americas Inc., as representatives of the several underwriters named in Schedule II thereto
1.2*
Underwriting Agreement, dated July 30, 2026 by and among Equinix Europe 2 Financing Corporation LLC, as issuer, Equinix, Inc., as guarantor, and BNP Paribas Securities Corp., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC., HSBC Securities (USA) Inc. and MUFG Securities Americas Inc., as representatives of the several underwriters named in Schedule II thereto
4.1
Indenture, dated as of December 12, 2017, between Equinix, Inc., and U.S. Bank National Association, as trustee
4.2
Indenture, dated as of March 18, 2024, among Equinix Europe 2 Financing Corporation LLC, as issuer, Equinix, Inc., as guarantor, and U.S. Bank Trust Company, National Association, as trustee
4.3*
Twenty-First Supplemental Indenture, dated as of August 6, 2026, between Equinix, Inc., as issuer, and U.S. Bank Trust Company, National Association, as trustee
4.4*
Twenty-Second Supplemental Indenture, dated as of August 6, 2026, between Equinix, Inc., as issuer, and U.S. Bank Trust Company, National Association, as trustee
4.5*
Twenty-Third Supplemental Indenture, dated as of August 6, 2026, between Equinix, Inc., as issuer, and U.S. Bank Trust Company, National Association, as trustee
4.6*
Ninth Supplemental Indenture, dated as of August 6, 2026, among Equinix Europe 2 Financing Corporation LLC, as issuer, Equinix, Inc., as guarantor, and U.S. Bank Trust Company, National Association, as trustee
4.7*
Form of 5.000% Senior Note due 2029 (included in Exhibit 4.3)
4.8*
Form of 5.250% Senior Note due 2031 (included in Exhibit 4.6)
4.9*
Form of 5.500% Senior Note due 2033 (included in Exhibit 4.4)
4.10*
Form of 5.800% Senior Note due 2036 (included in Exhibit 4.5)
5.1*
Opinion of Davis Polk & Wardwell LLP
23.1*
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
104
Cover Page Interactive Data File - the cover page iXBRL tags are embedded within the Inline XBRL document
* Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
EQUINIX, INC.
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
Date: August 6, 2026
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2622384d1_ex1-1.htm · Sequence: 2
Exhibit 1.1
Execution
Version
Equinix, Inc.
5.000% Senior Notes due 2029
5.500% Senior
Notes due 2033
5.800% Senior
Notes due 2036
Underwriting Agreement
New York, New York
July 30, 2026
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
c/o BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
as Representatives of the several underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Equinix, Inc., a corporation organized under
the laws of Delaware (the “Company”), proposes to issue and sell to the several underwriters named in Schedule II
hereto (the “Underwriters”), for whom BNP Paribas Securities Corp., Deutsche Bank Securities Inc., Goldman Sachs &
Co. LLC, HSBC Securities (USA) Inc. and MUFG Securities Americas Inc. (“you” or the “Representatives”)
are acting as representatives, the respective amounts set forth in Schedule II hereto opposite such Underwriter’s name of
$850,000,000 in aggregate principal amount of the Company’s 5.000% Senior Notes due 2029 (the “2029 Notes”),
$650,000,000 in aggregate principal amount of the Company’s 5.500% Senior Notes due 2033 (the “2033 Notes”) and
$650,000,000 in aggregate principal amount of the Company’s 5.800% Senior Notes due 2036 (the “2036 Notes” and,
together with the 2029 Notes and the 2033 Notes, the “Securities”). The Securities are to be issued under that certain
indenture, dated as of December 12, 2017, between the Company and U.S. Bank Trust Company National Association, as trustee (the “Trustee”)
(the “Base Indenture”), as further supplemented by a twenty-first supplemental indenture with respect to the 2029 Notes,
to be dated as of the Closing Date (the “Twenty-First Supplemental Indenture”), a twenty-second supplemental indenture
with respect to the 2033 Notes, to be dated as of the Closing Date (the “Twenty-Second Supplemental Indenture”) and
a twenty-third supplemental indenture with respect to the 2036 Notes, to be dated as of the Closing Date (the “Twenty-Third Supplemental
Indenture” and, together with the Twenty-First Supplemental Indenture and the Twenty-Second Supplemental Indenture, the “Supplemental
Indentures” and each, a “Supplemental Indenture” and together with the Base Indenture, the “Indenture”).
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in Section 20 hereof. This Underwriting Agreement (this “Agreement”),
the Indenture and the Securities are referred to herein collectively as the “Operative Documents.”
Concurrently with the offering of the Securities,
Equinix Europe 2 Financing Corporation LLC, a limited liability company organized under the laws of Delaware that is an indirect, wholly-owned
subsidiary of the Company (“Europe 2 Finco”), proposes to issue and sell to the Underwriters $850,000,000 in principal
amount of Senior Notes due 2031 (the “2031 Notes”), guaranteed by the Company, pursuant to a separate underwriting
agreement entered into on the date hereof by and among the Representatives on behalf of the several underwriters named in Schedule II
thereto, Europe 2 Finco and the Company. The completion of the offering of the Securities and the completion of the offering of the 2031
Notes are not conditioned on each other.
1. Representations
and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405. Such Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus and/or preliminary prospectus supplements relating to the
Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information
required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and the
Preliminary Prospectus used most recently prior to the Execution Time) as the Company has advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) On
each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each
Effective Date, at the Execution Time and at the Closing Date, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8(b) hereof.
-2-
(c) (i) The
Disclosure Package and (ii) each electronic road show relating to the offering and sale of the Securities, when taken together as
a whole with the Disclosure Package, as of the Execution Time and at the Closing Date, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8(b) hereof.
(d) (i) At
the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption
in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause
(iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company
agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
-3-
(f) Each
Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereto does not include
any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(g) The
Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final
Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to
be so qualified or in good standing in such other jurisdictions would not reasonably be expected to have a Company Material Adverse Effect.
As used herein, “Company Material Adverse Effect” means a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its subsidiaries, taken as a whole.
(h) As
of June 30, 2026, EQUINIX (EMEA) BV, EQUINIX (EMEA) MANAGEMENT, INC., EQUINIX LLC and Equinix Pacific LLC (each, a “Subsidiary”
and, together, the “Subsidiaries”) were the direct and indirect subsidiaries of the Company that are material
to the business of the Company and its subsidiaries taken as a whole. Each of the Subsidiaries has been duly organized and is an existing
business entity in good standing (or equivalent concept) under the laws of the jurisdiction of its organization, with power and authority
(corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
and each Subsidiary is duly qualified to do business as a foreign business entity in good standing (or equivalent concept) in all other
jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except to the extent
that the failure to be so qualified or in good standing (or equivalent concept) would not reasonably be expected to have a Company Material
Adverse Effect; all of the issued and outstanding capital stock or equity interests, as applicable, of each subsidiary of the Company
have been duly authorized and validly issued and are fully paid and nonassessable. The Company owns all of the shares of capital stock
or equity interests, as applicable, of each subsidiary of the Company, directly or through subsidiaries, free from liens, encumbrances
and defects, except as disclosed in the Disclosure Package and the Final Prospectus. As of June 30,
2026, the Subsidiaries were the only significant subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X.
(i) Except
as disclosed in the Disclosure Package and the Final Prospectus or as have been validly waived, there are no contracts, agreements or
understandings involving the Company granting to any person the right to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
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(j) The
Base Indenture was duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law (the “Enforceability
Exceptions”)); the Supplemental Indenture has been duly authorized by the Company and, when executed and delivered by the Company
(assuming due authorization, execution and delivery thereof by the Trustee), will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms subject to the Enforceability Exceptions; the Indenture is qualified under the Trust
Indenture Act and complies with the provisions thereof applicable to an indenture that is qualified thereunder; the Securities have been
duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for
by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company enforceable against
the Company subject to the Enforceability Exceptions and will be entitled to the benefits of the Indenture; and the statements set forth
under the heading “Description of Notes” in the Registration Statement, the Disclosure Package and the Final Prospectus, insofar
as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions.
(k) No
consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained
or made by the Company for the consummation of the transactions contemplated by this Agreement and each of the other Operative Documents,
except such as have been obtained and made under the Act, the Exchange Act, the Trust Indenture Act, or such as may be obtained under
state securities or blue sky laws in connection with the offer and sale of the Securities by the Underwriters in the manner contemplated
herein and in the Registration Statement, the Disclosure Package and the Final Prospectus.
(l) The
execution and delivery by the Company of this Agreement and each of the other Operative Documents (other than the Base Indenture), the
performance by the Company of its obligations under this Agreement and each of the other Operative Documents, and the consummation of
the transactions contemplated herein and therein will not result in a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or any of their properties, or any agreement or instrument to which the Company
or any such Subsidiary is a party or by which the Company or any such Subsidiary is bound or to which any of the properties of the Company
or any such Subsidiary is subject (except a breach, violation or default that would not reasonably be expected to have a material adverse
effect on the execution and delivery by the Company of this Agreement and each of the other Operative Documents (other than the Base Indenture),
the performance by the Company of its obligations under this Agreement and each of the other Operative Documents, and the consummation
of the transactions contemplated herein and therein), or the charter or by-laws of the Company or any such Subsidiary.
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(m) This
Agreement has been duly authorized, executed and delivered by the Company.
(n) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, the Company and the Subsidiaries hold title
to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that
are reasonably likely to result in a Company Material Adverse Effect; and the Company and the Subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that are reasonably likely to result in a Company Material Adverse Effect.
(o) The
Company and the Subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Company Material Adverse Effect.
(p) No
labor dispute with the employees of the Company or any of the Subsidiaries, exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Company Material Adverse Effect.
(q) The
Company and the Subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other intellectual property (collectively, the “Intellectual Property
Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice
of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights that, if determined adversely
to the Company or any of the Subsidiaries, would individually or in the aggregate have a Company Material Adverse Effect.
(r) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, none of the Company or any of the Subsidiaries
(A) is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances (collectively, the “Environmental Laws”), (B) owns
leases or operates any real property contaminated with any substance that is subject to any Environmental Laws, (C) is liable for
any off-site disposal or contamination pursuant to any Environmental Laws, or (D) is subject to any claim relating to any Environmental
Laws, in each case which violation, contamination, liability or claim would individually or in the aggregate have a Company Material Adverse
Effect; and the Company is not aware of any pending or threatened investigation which is reasonably expected to lead to such a claim.
Except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities
and any potential liabilities to third parties) that would reasonably be expected to have a Company Material Adverse Effect.
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(s) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company or any of the Subsidiaries, or any of their respective properties that, if determined adversely to the
Company or any of its Subsidiaries would individually or in the aggregate have a Company Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its obligations under any Operative Document, or which are otherwise material
in the context of the transactions contemplated by any Operative Document; and no such actions, suits or proceedings are threatened or,
to the Company’s knowledge, contemplated.
(t) The
financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Disclosure Package,
the Final Prospectus and the Registration Statement present fairly the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their consolidated statements of operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis
and the schedules included in the Registration Statement present fairly the information required to be stated therein. The summary consolidated
financial data set forth in the Disclosure Package, the Final Prospectus and Registration Statement fairly present on the basis stated
in the Disclosure Package, the Final Prospectus and the Registration Statement, respectively, the information included therein. The interactive
data in eXtensible Business Reporting Language included or incorporated by reference in each of the Disclosure Package, the Final Prospectus
and the Registration Statement fairly presents the information called for in all material respects and is prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(u) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto), since the date of the latest audited financial statements included in the Registration Statement, the Disclosure Package and
the Final Prospectus (i) there has not occurred any Company Material Adverse Effect, or any development or event that would reasonably
be expected to involve a prospective Company Material Adverse Effect, and (ii) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock.
(v) None
of the Company or any of the Subsidiaries is currently in breach of, or in default under, any other written agreement or instrument to
which it or its property is bound or affected except to the extent that such breach or default would not reasonably be expected to have
a Company Material Adverse Effect.
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(w) The
documents incorporated by reference into the Disclosure Package and the Final Prospectus, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the
Exchange Act; and any further such documents incorporated by reference will, when they are filed, conform in all material respects with
the requirements of the Exchange Act.
(x) The
Company and each of the Subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they are engaged; none of the Company or any such Subsidiary has
been refused any insurance coverage sought or applied for; and none of the Company or any such Subsidiary has any reason to believe, absent
a significant change in overall insurance market conditions, that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost
that would not reasonably be expected to have a Company Material Adverse Effect.
(y) PricewaterhouseCoopers,
LLP (US), which has certified certain consolidated financial statements of the Company and its subsidiaries, is the independent registered
public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) (the “PCAOB”) and as required by the Act.
(z) The
Company and each of the Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that:
(A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
(D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences and (E) interactive data in eXtensible Business Reporting Language included or incorporated
by reference in each of the Disclosure Package, the Final Prospectus and the Registration Statement is prepared in accordance with the
Commission’s rules and guidelines applicable thereto; the Company and the Subsidiaries’ internal controls over financial
reporting are effective and the Company and the Subsidiaries are not aware of any material weakness in their internal controls over financial
reporting.
(aa) None
of the Company or any of its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee or affiliate or
other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in
furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government
official or employee, including of any government-owned or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable
law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law;
or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including,
without limitation, any rebate, payoff, influence payment, kickback or other unlawful payment or benefit. The Company and its subsidiaries
have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure
compliance with all applicable anti-bribery and anti-corruption laws.
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(bb) (A) The
operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable
money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the knowledge of the Company, threatened; (B) the Company and its subsidiaries have instituted and maintained procedures
designed to ensure compliance with the Anti-Money Laundering Laws; and (C) the Company will not directly or indirectly use the proceeds
of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity for any purpose that would violate Anti-Money Laundering Laws.
(cc) None
of the Company or any of its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee or affiliate or
other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any
sanctions administered or enforced by the U.S. Government, (including without limitation, the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”) or the U.S. Department of State and including, without limitation, the designation
as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”),
the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of
Sanctions, including without limitation, Crimea, Kherson, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s
Republic, and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea and Venezuela (each, a “Sanctioned Country”);
and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to
fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as Underwriter, advisor, investor or otherwise) of Sanctions.
Since April 24, 2019, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not
engage in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target
of Sanctions or with any Sanctioned Country.
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(dd) None
of the Company nor any of the Subsidiaries has taken, directly or indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Securities. Except as permitted by the Act and furnished and consented to by the Underwriters prior to distribution, the Company has not
distributed any registration statement, preliminary prospectus, prospectus or other offering material in connection with the offering
and sale of the Securities.
(ee) The
Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files reports
with the Commission on the Electronic Data Gathering, Analysis and Retrieval system.
(ff) The
Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, will not be, an “investment company” as defined in the Investment Company
Act.
(gg) Except
as disclosed in the Disclosure Package and the Final Prospectus, there are no contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s
fee or other like payment as a result of the transactions contemplated by this Agreement.
(hh) On
and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities, and the other transactions
related thereto as described in each of the Disclosure Package and the Final Prospectus) will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a particular date and entity, that on such date (i) the fair value (and
present fair saleable value) of the assets of such entity is not less than the total amount required to pay the probable liability of
such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such
entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature
and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated
by this Agreement, the Disclosure Package and the Final Prospectus, such entity does not have, intend to incur or believe that it will
incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such entity is not engaged in any
business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably
small capital; and (v) such entity is not a defendant in any civil action that would result in a judgment that such entity is or
would become unable to satisfy.
(ii) Neither
the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in each of the
Disclosure Package and Final Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board of Governors.
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(jj) The
Company and its directors and officers are in material compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith.
(kk) The
Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all respects
as required in connection with, the operation of the business of the Company and the subsidiaries as currently conducted, except for such
inadequacies or failures to operate and perform as would not, individually or in the aggregate, be reasonably expected to have a Company
Material Adverse Effect. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies,
procedures, and safeguards reasonably designed to maintain and protect the integrity, continuous operation, redundancy and security of
all material IT Systems and all information and data processed or stored in connection with their businesses, including all material personal,
personally identifiable, sensitive, confidential or regulated information and data (“Protected Data”). For the past
two years, there have been no breaches, violations, outages, or unauthorized uses of or accesses to the IT Systems and Protected Data,
except for those that have been remedied without material cost or liability or that did not, or are not reasonably expected to, individually
or in the aggregate, have a Company Material Adverse Effect. The Company and its subsidiaries are presently in compliance with all applicable
laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Protected Data and to the protection
of such IT Systems and Protected Data from unauthorized use, access, misappropriation or modification, except for such noncompliance as
would not, individually or in the aggregate, be reasonably expected to have a Company Material Adverse Effect.
Any certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed
a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase
price (expressed as a percentage of principal amount) set forth in Schedule I hereto with respect to each series of Securities,
the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto with respect to such
series.
3. Delivery
and Payment. Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I hereto
or at such time on such later date not more than ten Business Days after the date of this Agreement as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of
the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct. Certificates for the Securities shall be registered in such names and
in such denominations as the Representatives may request not less than one Business Day in advance of the Closing Date.
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The Company agrees to have the Securities available
for inspection, checking and packaging by the Representatives in New York, New York, no later than two Business Days prior to the Closing
Date.
4. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
The Company and the several Underwriters agree that:
(a) Prior
to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or amendment
or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus and the latest Preliminary Prospectus
used prior to the Execution Time. The Company will cause the Final Prospectus, properly completed, and any amendment or supplement thereto
to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Final Prospectus, and any amendment or supplement thereto (if required), shall have been
filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, which amendment shall be in a form approved by the Representatives,
(iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any amendment or supplement
to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of
any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection,
to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary,
by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such
amendment or new registration statement declared effective as soon as practicable.
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(b) The
Company will prepare a final term sheet, containing a description of final terms of the Securities and the offering thereof, in the form
approved by you and attached as Schedule IV hereto and file such term sheet pursuant to Rule 433(d) within the time required
by such Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary
to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company will (i) notify promptly the Representatives so that any use of
the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package in a form approved
by the Representatives to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities
as you may reasonably request.
(d) If,
at any time when a prospectus relating to any series of Securities is required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to supplement
the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with
use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement
or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in
order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities
as you may reasonably request.
(e) As
soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
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(g) The
Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(h) Each
Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required
to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the free writing prospectus
containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided
that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included
in Schedule III hereto and any electronic road show relating to the offering and sale of the Securities. Any such free writing
prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, including without limitation for the purposes of this Agreement and (y) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping.
(i) Before
making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Final Prospectus, whether before or after the time that the Registration Statement
becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such
Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(j) Other
than with respect to the offering of the 2031 Notes, the Company will not, without the prior written consent of the Representatives, offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company pursuant to
an indenture, or publicly announce an intention to effect any such transaction, until the day after the Closing Date.
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(k) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(l) Except
as otherwise agreed in writing between the Company and the Representatives, the Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing, authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (ii) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and
delivered, including the expenses and fees of the financial printer, in connection with the offering and sale of the Securities; (iii) the
registration of the Securities under the Exchange Act; (iv) any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including filing fees and the reasonably incurred fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (v) the transportation and other expenses incurred by or on
behalf of Company representatives (but not the Underwriters) in connection with presentations to prospective purchasers of the Securities;
(vi) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel)
for the Company; and (vii) all other costs and expenses incident to the performance by the Company of its obligations hereunder and
under each of the other Operative Documents.
6. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the
final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings
by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall
have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
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(b) The
Representatives shall have received (i) the opinion and negative assurance letter of Davis Polk & Wardwell LLP, outside
counsel for the Company, dated the Closing Date and addressed to the Representatives, to the effect as set forth on Exhibit A
hereto, (ii) the opinion of Kurt Pletcher, Esq., the Chief Legal Officer of the Company, dated the Closing Date and addressed
to the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of Sullivan & Worcester
LLP, special tax counsel for the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably
satisfactory to the Representatives.
(c) The
Representatives shall have received from Simpson Thacher & Bartlett LLP, counsel for the Underwriters, such opinion and negative
assurance letter, dated the Closing Date and addressed to the Representatives, with respect to matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(d) The
Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results
of operation of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(e) The
Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort”
letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of
the Closing Date and each in form and substance satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort” letters to underwriters with respect to the financial statements and
certain financial information of the Company and its subsidiaries contained or incorporated by reference in each of the Disclosure Package
and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to
the Company and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use
a “cut-off” date no more than two Business Days prior to the Closing Date.
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(f) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or
decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto).
(g) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior
to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
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The documents required to be delivered by this
Section 6 shall be delivered at the office of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, at 2475 Hanover
Street, Palo Alto, CA 94304, on the Closing Date.
7. Reimbursement
of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all expenses (including fees and disbursements of counsel) that shall have been reasonably incurred by them
in connection with the proposed purchase and sale of the Securities.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, its affiliates, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any amendment thereof or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or
(ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus
or any other preliminary prospectus supplement relating to any series of Securities, the Final Prospectus, any Issuer Free Writing Prospectus
or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in
any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
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(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the information contained under the heading “Underwriting” in the Disclosure
Package and the Final Prospectus in (x) the sentence related to concessions to selected dealers, (y) the paragraph related to
stabilization transactions and (z) the sentences relating to risk management and hedging policies of certain Underwriters or their
affiliates who have lending relationships with the Company (for the avoidance of doubt, such sentences begin with the words “Certain
of the underwriters or their affiliates routinely hedge,...”) constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Registration Statement, Preliminary Prospectus, the Final Prospectus or any Issuer Free
Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonably incurred fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not
include any statement as to any admission of fault, culpability or failure to act by or on behalf of any indemnified party.
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(d) In
the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the
offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. In no case shall any Underwriter (except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each affiliate, director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). The
Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to their respective purchase obligations
and not joint.
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9. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any series of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions
which the principal amount of Securities with respect to such series set forth opposite their names in Schedule II hereto bears
to the aggregate principal amount of such series of Securities set forth opposite the names of all the remaining Underwriters) the Securities
with respect to such series which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company other than as set forth in the last sentence of Section 11. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the NASDAQ Global Select Market or trading in securities generally on the
New York Stock Exchange or the NASDAQ Global Market shall have been suspended or limited or minimum prices shall have been established
on either of such exchanges, (ii) a banking moratorium shall have been declared either by U.S. Federal or New York State authorities,
(iii) there shall have occurred a material disruption in securities settlement or clearance services in the United States, or (iv) there
shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the Disclosure
Package or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or its affiliates or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions
of Sections 5(l), 7, 8 and 22 hereof shall survive the termination or cancellation of this Agreement.
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12. Notices.
All communications hereunder will be in writing and effective only on receipt, and, (a) if sent to the Representatives, will be mailed,
delivered, emailed or telefaxed to the Representatives c/o BNP Paribas Securities Corp., 787 Seventh Avenue, 7th Floor, New
York, New York 10019; Attention: Debt Syndicate Desk, email: dl.us.syndicate.support@us.bnpparibas.com; c/o Deutsche Bank Securities Inc.,
1 Columbus Circle, New York, New York 10019; Attention: Debt Capital Markets – Syndicate Desk, with a copy to General Counsel, email:
dbcapmarkets.gcnotices@list.db.com; c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198; Attention: Registration
Department; facsimile: (212) 902-9316; email: prospectus-ny@ny.email.gs.com; c/o HSBC Securities (USA) Inc., 66 Hudson Boulevard, New
York, New York 10001; Attention: DCM Legal Americas, facsimile: 646-366-3229; email: dcmlegalamericas@us.hsbc.com; c/o MUFG Securities
Americas Inc., 1221 Avenue of the Americas, 6th Floor, New York, New York 10020; Attention: Capital Markets Group, facsimile:
646-434-3455; or (b) if sent to the Company, will be mailed, delivered or telefaxed to the Chief Legal Officer, (650) 598-6913,
and confirmed to it at One Lagoon Drive, Redwood City, California 94065, Attention: the Legal Department.
13. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the affiliates,
officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and
(c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering
is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making
its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising
the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services
of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
15. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter hereof.
16. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
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17. Submission
to Jurisdiction. The Company irrevocably submits to the exclusive jurisdiction of any New York State or United States Federal court
sitting in The City of New York over any suit, action or proceeding arising out of or relating to this Agreement, the Disclosure Package,
the Final Prospectus or the offering of the Securities. The Company irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company
has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any
legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity
in respect of any such suit, action or proceeding.
18. Waiver
of Jury Trial. The Company 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 Agreement or the transactions contemplated hereby.
19. Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including via www.docusign.com and any
other electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes.
20. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
21. Definitions.
The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act
of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base
prospectus referred to in the introductory paragraph of this Agreement contained in the Registration Statement at the Execution Time and
all documents incorporated by reference therein.
“Business Day” shall mean any day other
than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by
law to close in New York City.
“Commission” shall mean the Securities
and Exchange Commission.
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“Disclosure Package” shall mean (i) the
Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto,
if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package.
“Effective Date” shall mean the initial
date and time that the Registration Statement becomes effective and the date and time that any post-effective amendment or amendments
thereto became or become effective prior to completion or termination of the offering of the Securities to the public pursuant thereto.
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean 4:35 p.m. (New
York City time) on July 30, 2026.
“Final Prospectus” shall mean the prospectus
supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time and all documents
incorporated by reference therein, together with the Base Prospectus.
“Free Writing Prospectus” shall mean
a free writing prospectus, as defined in Rule 405.
“Investment Company Act” shall mean
the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus” shall
mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean
any preliminary prospectus and any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which
is used prior to the filing of the Final Prospectus and all documents incorporated by reference therein, together with the Base Prospectus.
“Registration Statement” shall mean
the registration statement referred to in paragraph 1(a) above, including exhibits, financial statements, any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement
pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended and, in each case, all documents incorporated by
reference therein.
“Rule 158”, “Rule 163”,
“Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer to such rules under the Act.
“Trust Indenture Act” shall mean the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
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“Well-Known Seasoned Issuer” shall
mean a well-known seasoned issuer, as defined in Rule 405.
22. Recognition
of the U.S. Special Resolution Regimes.
(i) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(ii) In
the event that any Underwriter that is a Covered Entity or any BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
As used in
this Section 22:
“BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12
U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2
or 382.1, as applicable.
“U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and
(ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23. Recognition
of the U.K. Bail In Clause For Other Liabilities. Notwithstanding and to the exclusion of any other term of this Agreement
or any other agreements, arrangements, or understanding between any Underwriter subject to the Bail-In Powers of the relevant UK resolution
authority (each, a “UK bail-in party”) and the Company, the Company acknowledges and accepts that a UK Bail-in Liability arising
under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts,
and agrees to be bound by:
(a) the
effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of a UK bail-in
party to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination
thereof:
(i) the
reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
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(ii) the
conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of any UK bail-in party
or another person, and the issue to or conferral on the Company of any UK bail-in party of such shares, securities or obligations;
(iii) the
cancellation of the UK Bail-in Liability; and
(iv) the
amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by
suspending payment for a temporary period; and
(b) the
variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise
of UK Bail-in Powers by the relevant UK resolution authority.
As
used in this Section 23:
“UK Bail-in Legislation”
means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound
or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration
or other insolvency proceedings).
“UK
Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK
Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that
is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability
of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares,
securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if
a right had been exercised under it or to suspend any obligation in respect of that liability.
[Signature Pages Follow]
-26-
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent
a binding agreement among the Company and the several Underwriters.
Very truly yours,
Equinix, Inc.
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
[Signature
Page to Equinix Underwriting Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
BNP PARIBAS SECURITIES CORP.
By:
/s/ Rafael Ribeiro
Name:
Rafael Ribeiro
Title:
Managing Director
DEUTSCHE BANK SECURITIES INC.
By:
/s/ Kevin Prior
Name:
Kevin Prior
Title:
Managing Director
By:
/s/ Thomas Short
Name:
Thomas Short
Title:
Managing Director / Debt Syndicate
GOLDMAN SACHS & CO. LLC
By:
/s/ Taylor D. Joss
Name:
Taylor D. Joss
Title:
Managing Director
HSBC SECURITIES (USA) INC.
By:
/s/ Patrice Altongy
Name:
Patrice Altongy
Title:
Managing Director
[Signature
Page to Equinix Underwriting Agreement]
MUFG SECURITIES AMERICAS INC.
By:
/s/ Richard Testa
Name:
Richard Testa
Title:
Managing Director
For themselves and the other several
Underwriters named in
Schedule II to the foregoing Agreement.
[Signature
Page to Equinix Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated July 30, 2026
Registration Statement Nos. 333-275203, 333-275203-01, 333-275203-02
and 333-275203-03
Representatives: BNP Paribas Securities Corp., Deutsche Bank Securities
Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc. and MUFG Securities Americas Inc.
Title, Purchase Price and Description of the Securities:
Title: 5.000%
Senior Notes due 2029
Principal amount: $850,000,000
Purchase price (include
accrued interest or amortization, if any): 99.424%
Sinking fund provisions: None
Redemption provisions: As set forth in the Disclosure Package
Other provisions: As set forth in the Disclosure Package
Title: 5.500% Senior Notes due 2033
Principal amount: $650,000,000
Purchase price (include accrued interest or amortization, if
any): 98.690%
Sinking fund provisions: None
Redemption provisions: As set forth in
the Disclosure Package
Other provisions: As set forth in the Disclosure
Package
Title: 5.800% Senior Notes due 2036
Principal amount: $650,000,000
Purchase price (include accrued interest or amortization, if
any): 98.860%
Sinking fund provisions: None
Redemption provisions: As set forth in
the Disclosure Package
Other provisions: As set forth in the Disclosure
Package
Closing Date, Time and Location:
August 6, 2026 at 9:00 a.m. New York City time at
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
Type of Offering: Non-delayed
Modification of items to be covered by the letter from PricewaterhouseCoopers,
LLP (US) delivered pursuant to Section 6(e) at the Execution Time: None.
SCHEDULE II
Underwriters
Principal
Amount
of 2029 Notes to
be Purchased
Principal
Amount
of 2033 Notes to
be Purchased
Principal
Amount
of 2036 Notes to
be Purchased
BNP Paribas Securities Corp.
$ 90,950,000
$ 69,550,000
$ 69,550,000
Deutsche Bank Securities Inc.
90,950,000
69,550,000
69,550,000
Goldman Sachs & Co. LLC
90,950,000
69,550,000
69,550,000
HSBC Securities (USA) Inc.
90,950,000
69,550,000
69,550,000
MUFG Securities Americas Inc.
90,950,000
69,550,000
69,550,000
BofA Securities, Inc.
29,750,000
22,750,000
22,750,000
Citigroup Global
Markets Inc.
29,750,000
22,750,000
22,750,000
DBS Bank Ltd.
29,750,000
22,750,000
22,750,000
J.P. Morgan Securities
LLC
29,750,000
22,750,000
22,750,000
Mizuho Securities
USA LLC
29,750,000
22,750,000
22,750,000
SMBC Nikko Securities
America, Inc.
29,750,000
22,750,000
22,750,000
Standard Chartered
Bank
29,750,000
22,750,000
22,750,000
Evercore Group
L.L.C.
51,000,000
39,000,000
39,000,000
ING Financial
Markets LLC
17,000,000
13,000,000
13,000,000
Morgan Stanley & Co. LLC
17,000,000
13,000,000
13,000,000
PNC Capital Markets LLC
17,000,000
13,000,000
13,000,000
RBC Capital Markets, LLC
17,000,000
13,000,000
13,000,000
Santander US Capital Markets LLC
17,000,000
13,000,000
13,000,000
Scotia Capital (USA) Inc.
17,000,000
13,000,000
13,000,000
TD Securities (USA) LLC
17,000,000
13,000,000
13,000,000
U.S. Bancorp Investments, Inc.
17,000,000
13,000,000
13,000,000
Total
$ 850,000,000
$ 650,000,000
$ 650,000,000
SCHEDULE III
Schedule of Free Writing Prospectuses included
in the Disclosure Package
(1) Final Term Sheet as set forth in Schedule IV.
SCHEDULE IV
[See attached Final Term Sheet]
Issuer Free
Writing Prospectus dated July 30, 2026
(Relating to Preliminary Prospectus Supplement
dated July 30, 2026) Filed Pursuant
to Rule 433
Registration Statement Nos. 333-275203,
333-275203-01, 333-275203-02 and 333-275203-03
Equinix, Inc.
$850,000,000 5.000% Senior Notes due 2029 (the
“2029 Notes”)
$650,000,000 5.500% Senior Notes due 2033 (the
“2033 Notes”)
$650,000,000 5.800% Senior Notes due 2036 (the
“2036 Notes”)
Equinix Europe 2 Financing Corporation LLC
$850,000,000 5.250% Senior Notes due 2031 (the
“2031 Notes”)
(collectively, the “Notes”)
This Final Term Sheet is qualified in its entirety
by reference to the Preliminary Prospectus Supplement. The information in this Final Term Sheet supplements the Preliminary Prospectus
Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in
the Preliminary Prospectus Supplement. Capitalized terms used herein without definition shall have the meanings ascribed thereto in the
Preliminary Prospectus Supplement.
Ratings*:
[INTENTIONALLY OMITTED]
Book-Running Managers:
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
BofA Securities, Inc.
Citigroup Global Markets Inc.
DBS Bank Ltd.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
SMBC Nikko Securities America, Inc.
Standard Chartered Bank
Co-Managers:
Evercore Group L.L.C.
ING Financial Markets LLC
Morgan Stanley & Co. LLC
PNC Capital Markets LLC
RBC Capital Markets, LLC
Santander US Capital Markets LLC
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
U.S. Bancorp Investments, Inc.
Distribution:
SEC Registered (Registration Nos. 333-275203, 333-275203-01, 333-275203-02 and 333-275203-03)
Use of Proceeds:
To fund the acquisition of additional properties or businesses, fund development opportunities, and to provide for working capital and other general corporate purposes, including but not limited to refinancing upcoming maturities and for repayment of existing borrowings.
Settlement Date:
It is expected that delivery of the Notes will be made against payment therefor on or about August 6, 2026, which is the fifth business day following the date of pricing of the Notes (such settlement cycle being referred to as “T+5”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to closing will be required, by virtue of the fact that the Notes initially will settle in T+5, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement and should consult their own advisors.
5.000% Senior Notes due 2029
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$850,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2029
Benchmark Treasury:
UST 4.125% due July 15, 2029
Benchmark Treasury Price and Yield:
99-17 / 4.295%
Spread to Benchmark Treasury:
+75 bps
Yield to Maturity:
5.045%
Public Offering Price:
99.874% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$848,929,000
Coupon (Interest Rate):
5.000% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to July 15, 2029 (one month prior to the maturity date of the 2029 Notes) (the “2029 Notes Par Call Date”), the Issuer may redeem the 2029 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes matured on the 2029 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 15 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2029 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2029 Notes Par Call Date, the Issuer may redeem the 2029 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2029 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BV7
ISIN:
US29444UBV70
5.500% Senior Notes due 2033
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$650,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2033
Benchmark Treasury:
UST 4.250% due June 30, 2033
Benchmark Treasury Price and Yield:
98-13¼ / 4.519%
Spread to Benchmark Treasury:
+110 bps
Yield to Maturity:
5.619%
Public Offering Price:
99.315% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$645,547,500
Coupon (Interest Rate):
5.500% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to June 15, 2033 (two months prior to the maturity date of the 2033 Notes) (the “2033 Notes Par Call Date”), the Issuer may redeem the 2033 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2033 Notes matured on the 2033 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 20 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2033 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2033 Notes Par Call Date, the Issuer may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2033 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BY1
ISIN:
US29444UBY10
5.800% Senior Notes due 2036
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$650,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2036
Benchmark Treasury:
UST 4.375% due May 15, 2036
Benchmark Treasury Price and Yield:
97-23+ / 4.665%
Spread to Benchmark Treasury:
+120 bps
Yield to Maturity:
5.865%
Public Offering Price:
99.510% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$646,815,000
Coupon (Interest Rate):
5.800% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to May 15, 2036 (three months prior to the maturity date of the 2036 Notes) (the “2036 Notes Par Call Date”), the Issuer may redeem the 2036 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2036 Notes matured on the 2036 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 20 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2036 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2036 Notes Par Call Date, the Issuer may redeem the 2036 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2036 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BX3
ISIN:
US29444UBX37
5.250% Senior Notes due 2031
Issuer:
Equinix Europe 2 Financing Corporation LLC
Guarantor:
Equinix, Inc.
Principal Amount:
$850,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2031
Benchmark Treasury:
UST 4.125% due June 30, 2031
Benchmark Treasury Price and Yield:
98-27+ / 4.385%
Spread to Benchmark Treasury:
+95 bps
Yield to Maturity:
5.335%
Public Offering Price:
99.628% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$846,838,000
Coupon (Interest Rate):
5.250% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to July 15, 2031 (one month prior to the maturity date of the 2031 Notes) (the “2031 Notes Par Call Date”), the Issuer may redeem the 2031 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2031 Notes matured on the 2031 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 15 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2031 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2031 Notes Par Call Date, the Issuer may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2031 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29390X AK0
ISIN:
US29390XAK00
* Note:
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
To the extent any underwriter that is not a
U.S. registered broker-dealer intends to effect sales of notes in the United States, it will do so through one or more U.S. registered
broker-dealers in accordance with the applicable U.S. securities laws and regulations.
Equinix, Inc.
and Equinix Europe 2 Financing Corporation LLC have filed a registration statement (including a prospectus) with the SEC for the offering
to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary
prospectus supplement and other documents Equinix, Inc. or Equinix Europe 2 Financing Corporation LLC has filed with the SEC for
more complete information about Equinix, Inc., Equinix Europe 2 Financing Corporation LLC and this offering. You may get these documents
for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, Equinix, Inc., Equinix Europe 2 Financing
Corporation LLC or any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary
prospectus supplement if you request it by calling BNP Paribas Securities Corp. at 1-800-854-5674 (toll-free), Deutsche Bank Securities
Inc. at 1-800-503-4611 (toll-free), Goldman Sachs & Co. LLC at 1-866-471-2526 (toll-free), HSBC Securities (USA) Inc. at 1-866-811-8049
(toll-free) or MUFG Securities Americas Inc. at 1-877-649-6848 (toll-free).
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED
AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Exhibit A
FORM OF OPINION OF DAVIS POLK & WARDWELL
LLP
[Circulated Separately]
FORM OF NEGATIVE ASSURANCE LETTER OF DAVIS
POLK & WARDWELL LLP
[Circulated Separately]
Exhibit B
FORM OF OPINION OF THE GENERAL COUNSEL
[Circulated Separately]
EX-1.2 — EXHIBIT 1.2
EX-1.2
Filename: tm2622384d1_ex1-2.htm · Sequence: 3
Exhibit 1.2
Execution
Version
Equinix Europe 2 Financing
Corporation LLC
5.250% Senior Notes due 2031
fully and unconditionally guaranteed by Equinix, Inc.
Underwriting Agreement
New York, New York
July 30, 2026
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
c/o BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
as Representatives of the several underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Equinix Europe 2 Financing Corporation LLC, a limited
liability company organized under the laws of Delaware (the “Issuer”), proposes to issue and sell to the several underwriters
named in Schedule II hereto (the “Underwriters”), for whom BNP Paribas Securities Corp., Deutsche Bank Securities
Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc. and MUFG Securities Americas Inc. (“you” or the
“Representatives”) are acting as representatives, the respective amounts set forth in Schedule II hereto opposite
such Underwriter’s name of $850,000,000 in aggregate principal amount of the Issuer’s 5.250% Senior Notes due 2031 (the “Notes”).
The Notes are to be issued under that certain indenture, dated as of March 18, 2024, among U.S. Bank Trust Company, National Association,
as trustee (the “Trustee”), Equinix, Inc., a corporation organized under the laws of Delaware (“Equinix”
or the “Guarantor”), and the Issuer (together with the Guarantor, the “Companies,” and each, a “Company”)
(the “Base Indenture”), as supplemented by a ninth supplemental indenture to be dated as of the Closing Date (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”). Subject to the terms and conditions of
the Indenture, the payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed (the
“Guarantee”) on a senior unsecured basis by the Guarantor. The Notes and the Guarantee are herein collectively referred
to as the “Securities”.
Any reference herein to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 20 hereof. This Underwriting Agreement (this “Agreement”), the Indenture and
the Securities are referred to herein collectively as the “Operative Documents.”
Concurrently with
the offering of the Notes, Equinix proposes to issue and sell to the Underwriters $850,000,000 in principal amount of Equinix’s
Senior Notes due 2029 (the “2029 Notes”), $650,000,000 in principal amount of Equinix’s Senior Notes due
2033 (the “2033 Notes”) and $650,000,000 in principal amount of Equinix’s Senior Notes due 2036 (the “2036
Notes”), pursuant to a separate underwriting agreement entered into on the date hereof by and between the Representatives on
behalf of the several underwriters named in Schedule II thereto and Equinix. The completion of the offering of the Notes and the completion
of the offering of the 2029 Notes, the 2033 Notes and the 2036 Notes are not conditioned on each other.
1. Representations
and Warranties. The Issuer and the Guarantor, where applicable, represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1:
(a) The
Companies meet the requirements for use of Form S-3 under the Act and have prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405. Such Registration Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. The Companies may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus and/or preliminary prospectus supplements relating to the
Securities, each of which has previously been furnished to you. The Companies will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information
required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and the
Preliminary Prospectus used most recently prior to the Execution Time) as Equinix has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) On
each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each
Effective Date, at the Execution Time and at the Closing Date, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that none of the Companies makes any representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Companies by or on behalf
of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8(b) hereof.
2
(c) (i) The
Disclosure Package and (ii) each electronic road show relating to the offering and sale of the Securities, when taken together as
a whole with the Disclosure Package, as of the Execution Time and at the Closing Date, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the Companies by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of
the information described as such in Section 8(b) hereof.
(d) (i) At
the time of filing the Registration Statement by a Company, (ii) at the time of the most recent amendment thereto for the purposes
of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time a Company or any person acting
on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on
the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes
of this clause (iv)), the Guarantor was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405.
The Companies agree to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement that the Companies or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), each of the Companies was not and is not an Ineligible Issuer (as defined
in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that
the Companies be considered an Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereto does not include
any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Companies by any Underwriter through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
3
(g) Each
of the Companies has been duly incorporated or organized and is an existing corporation or limited liability company, as applicable, in
good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct
its business as described in the Disclosure Package and the Final Prospectus; and each Company is duly qualified to do business as a foreign
business entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so qualified or in good standing in such other jurisdictions
would not reasonably be expected to have a Material Adverse Effect. As used herein, “Material Adverse Effect” means
a material adverse effect on the condition (financial or other), business, properties or results of operations of Equinix and its subsidiaries,
taken as a whole.
(h) As
of June 30, 2026, EQUINIX (EMEA) BV, EQUINIX (EMEA) MANAGEMENT, INC., EQUINIX LLC and Equinix Pacific LLC (each, a “Subsidiary”
and, together, the “Subsidiaries”) were the direct and indirect subsidiaries of Equinix that are material to the business
of Equinix and its subsidiaries taken as a whole. Each of the Subsidiaries has been duly organized and is an existing business entity
in good standing (or equivalent concept) under the laws of the jurisdiction of its organization, with power and authority (corporate and
other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; and each Subsidiary
is duly qualified to do business as a foreign business entity in good standing (or equivalent concept) in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such qualification except to the extent that the failure to
be so qualified or in good standing (or equivalent concept) would not reasonably be expected to have a Material Adverse Effect; all of
the issued and outstanding capital stock or equity interests, as applicable, of each subsidiary of Equinix have been duly authorized and
validly issued and are fully paid and nonassessable. Equinix owns all of the shares of capital stock or equity interests, as applicable,
of each subsidiary of Equinix, directly or through subsidiaries, free from liens, encumbrances and defects, except as disclosed in the
Disclosure Package and the Final Prospectus. As of June 30, 2026, the Subsidiaries were the only significant subsidiaries of Equinix
as defined by Rule 1-02 of Regulation S-X.
(i) Except
as disclosed in the Disclosure Package and the Final Prospectus or as have been validly waived, there are no contracts, agreements or
understandings involving any of the Companies granting to any person the right to require any of the Companies to file a registration
statement under the Act with respect to any securities of the Companies owned or to be owned by such person or to require any of the Companies
to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Companies under the Act.
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(j) The
Base Indenture was duly authorized, executed and delivered by the Companies and, assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Companies in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law (the “Enforceability
Exceptions”)); the Supplemental Indenture has been duly authorized by the Companies and, when executed and delivered by the
Companies (assuming due authorization, execution and delivery thereof by the Trustee), will constitute a legal, valid and binding instrument
enforceable against the Companies in accordance with its terms subject to the Enforceability Exceptions; the Indenture is qualified under
the Trust Indenture Act and complies with the provisions thereof applicable to an indenture that is qualified thereunder; the Notes have
been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Issuer enforceable against
the Issuer subject to the Enforceability Exceptions and will be entitled to the benefits of the Indenture; and the statements set forth
under the heading “Description of Notes” in the Registration Statement, the Disclosure Package and the Final Prospectus, insofar
as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions.
(k) The
Guarantee has been duly authorized and, at the Closing Date, will have been duly executed by the Guarantor and, when the Notes have been
authenticated, issued and delivered in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor,
subject to the Enforceability Exceptions and will be entitled to the benefits of the Indenture.
(l) No
consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained
or made by the Companies for the consummation of the transactions contemplated by this Agreement and each of the other Operative Documents,
except such as have been obtained and made under the Act, the Exchange Act, the Trust Indenture Act, or such as may be obtained under
state securities or blue sky laws in connection with the offer and sale of the Securities by the Underwriters in the manner contemplated
herein and in the Registration Statement, the Disclosure Package and the Final Prospectus.
(m) The
execution and delivery by each of the Companies of this Agreement and each of the other Operative Documents, the performance by each of
the Companies of their obligations under this Agreement and each (other than the Base Indenture) of the other Operative Documents, and
the consummation of the transactions contemplated herein and therein will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Companies or any of the Subsidiaries or any of their properties, or any agreement or
instrument to which the Companies or any such Subsidiary is a party or by which the Companies or any such Subsidiary is bound or to which
any of the properties of Equinix or any such Subsidiary is subject (except a breach, violation or default that would not reasonably be
expected to have a material adverse effect on the execution and delivery by the Companies of this Agreement and each of the other Operative
Documents (other than the Base Indenture), the performance by the Companies of their obligations under this Agreement and each of the
other Operative Documents, and the consummation of the transactions contemplated herein and therein), or the charter or by-laws of the
Companies or any such Subsidiary.
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(n) This
Agreement has been duly authorized, executed and delivered by the Companies.
(o) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, Equinix and the Subsidiaries hold title to
all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that are
reasonably likely to result in a Material Adverse Effect; and Equinix and the Subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that are reasonably likely to result in a Material Adverse Effect.
(p) Equinix
and the Subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined adversely to Equinix or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect.
(q) No
labor dispute with the employees of Equinix or any of the Subsidiaries, exists or, to the knowledge of Equinix, is imminent that would
reasonably be expected to have a Material Adverse Effect.
(r) Equinix
and the Subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other intellectual property (collectively, the “Intellectual Property
Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice
of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights that, if determined adversely
to Equinix or any of the Subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(s) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, none of Equinix or any of the Subsidiaries
(A) is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances (collectively, the “Environmental Laws”), (B) owns
leases or operates any real property contaminated with any substance that is subject to any Environmental Laws, (C) is liable for
any off-site disposal or contamination pursuant to any Environmental Laws, or (D) is subject to any claim relating to any Environmental
Laws, in each case which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect;
and Equinix is not aware of any pending or threatened investigation which is reasonably expected to lead to such a claim. Except as disclosed
in the Registration Statement, the Disclosure Package and the Final Prospectus, there are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities
to third parties) that would reasonably be expected to have a Material Adverse Effect.
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(t) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, there are no pending actions, suits or proceedings
against or affecting Equinix or any of the Subsidiaries, or any of their respective properties that, if determined adversely to Equinix
or any of the Subsidiaries would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect
the ability of Equinix to perform its obligations under any Operative Document, or which are otherwise material in the context of the
transactions contemplated by any Operative Document; and no such actions, suits or proceedings are threatened or, to Equinix’s knowledge,
contemplated.
(u) The
financial statements of Equinix and its consolidated subsidiaries included or incorporated by reference in the Disclosure Package, the
Final Prospectus and the Registration Statement present fairly the financial position of Equinix and its consolidated subsidiaries as
of the dates shown and their consolidated statements of operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis
and the schedules included in the Registration Statement present fairly the information required to be stated therein. The summary consolidated
financial data set forth in the Disclosure Package, the Final Prospectus and Registration Statement fairly present on the basis stated
in the Disclosure Package, the Final Prospectus and the Registration Statement, respectively, the information included therein. The interactive
data in eXtensible Business Reporting Language included or incorporated by reference in each of the Disclosure Package, the Final Prospectus
and the Registration Statement fairly presents the information called for in all material respects and is prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(v) Except
as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto), since the date of the latest audited financial statements included in the Registration Statement, the Disclosure Package and
the Final Prospectus (i) there has not occurred any Material Adverse Effect, or any development or event that would reasonably be
expected to involve a prospective Material Adverse Effect, and (ii) there has been no dividend or distribution of any kind declared,
paid or made by Equinix on any class of its capital stock.
(w) None
of the Companies or any of the Subsidiaries is currently in breach of, or in default under, any other written agreement or instrument
to which it or its property is bound or affected except to the extent that such breach or default would not reasonably be expected to
have a Material Adverse Effect.
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(x) The
documents incorporated by reference into the Disclosure Package and the Final Prospectus, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the
Exchange Act; and any further such documents incorporated by reference will, when they are filed, conform in all material respects with
the requirements of the Exchange Act.
(y) Equinix
and each of the Subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts
as are prudent and customary in the businesses in which they are engaged; none of Equinix or any such Subsidiary has been refused any
insurance coverage sought or applied for; and none of Equinix or any such Subsidiary has any reason to believe, absent a significant change
in overall insurance market conditions, that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be
expected to have a Material Adverse Effect.
(z) PricewaterhouseCoopers,
LLP (US), which has certified certain consolidated financial statements of Equinix and its subsidiaries, is the independent registered
public accounting firm with respect to Equinix and its subsidiaries within the applicable rules and regulations adopted by the Commission
and the Public Company Accounting Oversight Board (United States) (the “PCAOB”) and as required by the Act.
(aa) Equinix
and each of the Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (A) transactions
are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences and (E) interactive data in eXtensible Business Reporting Language included or incorporated by reference in each
of the Disclosure Package, the Final Prospectus and the Registration Statement is prepared in accordance with the Commission’s rules and
guidelines applicable thereto; Equinix’s and the Subsidiaries’ internal controls over financial reporting are effective and
Equinix is not aware of any material weakness in their internal controls over financial reporting.
(bb) None
of Equinix or any of its subsidiaries, or, to the knowledge of Equinix, any director, officer, agent, employee or affiliate or other person
associated with or acting on behalf of Equinix or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer,
promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee,
including of any government-owned or controlled entity or of a public international organization, or any person acting in an official
capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing
the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under
the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anticorruption law; or (iv) made, offered, agreed,
requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff,
influence payment, kickback or other unlawful payment or benefit. Equinix and its subsidiaries have instituted, maintain and enforce,
and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery
and anti-corruption laws.
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(cc) (A) The
operations of Equinix and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable
money laundering statutes of all jurisdictions where Equinix or any of its subsidiaries conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving Equinix or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending
or, to the knowledge of Equinix, threatened; (B) Equinix and its subsidiaries have instituted and maintained procedures designed
to ensure compliance with the Anti-Money Laundering Laws; and (C) Equinix will not directly or indirectly use the proceeds of the
offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity for any purpose that would violate Anti-Money Laundering Laws.
(dd) None
of Equinix or any of its subsidiaries, or, to the knowledge of Equinix, any director, officer, agent, employee or affiliate or other person
associated with or acting on behalf of Equinix or any of its subsidiaries is currently the subject or the target of any sanctions administered
or enforced by the U.S. Government, (including without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially
designated national” or “blocked person”), the United Nations Security Council (“UNSC”),
the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor is Equinix or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions,
including without limitation, Crimea, Kherson, the so-called Donetsk People’s Republic and the so-called Luhansk People’s
Republic, and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea and Venezuela (each, a “Sanctioned Country”);
and Equinix will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities
of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to
fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as Underwriter, advisor, investor or otherwise) of Sanctions.
Since April 24, 2019, Equinix and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not engage
in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of
Sanctions or with any Sanctioned Country.
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(ee) None
of Equinix nor any of the Subsidiaries has taken, directly or indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any security of Equinix to facilitate the sale or resale of the Securities.
Except as permitted by the Act and furnished and consented to by the Underwriters prior to distribution, Equinix has not distributed any
registration statement, preliminary prospectus, prospectus or other offering material in connection with the offering and sale of the
Securities.
(ff) Equinix
is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files reports with
the Commission on the Electronic Data Gathering, Analysis and Retrieval system.
(gg) The
Companies are not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, will not be, an “investment company” as defined in the Investment Company
Act.
(hh) The
Issuer is a wholly-owned subsidiary of Equinix.
(ii) Except
as disclosed in the Disclosure Package and the Final Prospectus, there are no contracts, agreements or understandings between any of the
Companies and any person that would give rise to a valid claim against the Companies or any Underwriter for a brokerage commission, finder’s
fee or other like payment as a result of the transactions contemplated by this Agreement.
(jj) On
and immediately after the Closing Date, each Company (after giving effect to the issuance and sale of the Securities, and the other transactions
related thereto as described in each of the Disclosure Package and the Final Prospectus) will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a particular date and entity, that on such date (i) the fair value (and
present fair saleable value) of the assets of such entity is not less than the total amount required to pay the probable liability of
such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such
entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature
and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated
by this Agreement, the Disclosure Package and the Final Prospectus, such entity does not have, intend to incur or believe that it will
incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such entity is not engaged in any
business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably
small capital; and (v) such entity is not a defendant in any civil action that would result in a judgment that such entity is or
would become unable to satisfy.
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(kk) Neither
the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Companies as described in each of
the Disclosure Package and Final Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.
(ll) Equinix
and its directors and officers are in material compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
(mm) Equinix
and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications,
and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all respects as required in
connection with, the operation of the business of Equinix and the subsidiaries as currently conducted, except for such inadequacies or
failures to operate and perform as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
Equinix and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards reasonably
designed to maintain and protect the integrity, continuous operation, redundancy and security of all material IT Systems and all information
and data processed or stored in connection with their businesses, including all material personal, personally identifiable, sensitive,
confidential or regulated information and data (“Protected Data”). For the past two years, there have been no breaches,
violations, outages, or unauthorized uses of or accesses to the IT Systems and Protected Data, except for those that have been remedied
without material cost or liability or that did not, or are not reasonably expected to, individually or in the aggregate, have a Material
Adverse Effect. Equinix and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Protected Data and to the protection of such IT Systems and Protected Data from
unauthorized use, access, misappropriation or modification, except for such noncompliance as would not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
Any certificate signed by any officer of the Companies
and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed
a representation and warranty by the Companies, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Issuer
agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Issuer, at the purchase
price (expressed as a percentage of principal amount) set forth in Schedule I hereto with respect to each series of Securities, the principal
amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto with respect to such series.
3. Delivery
and Payment. Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I hereto or
at such time on such later date not more than ten Business Days after the date of this Agreement as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives and the Issuer or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Issuer by wire transfer payable in same-day funds
to an account specified by the Issuer. Delivery of the Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct. Certificates for the Securities shall be registered in such names and in such denominations
as the Representatives may request not less than one Business Day in advance of the Closing Date.
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Equinix agrees to have the Securities available
for inspection, checking and packaging by the Representatives in New York, New York, no later than two Business Days prior to the Closing
Date.
4. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
Each of the Companies and the several Underwriters agree that:
(a) Prior
to the termination of the offering of the Securities, neither of the Companies will file any amendment of the Registration Statement or
amendment or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus and the latest Preliminary
Prospectus used prior to the Execution Time. Equinix will cause the Final Prospectus, properly completed, and any amendment or supplement
thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. Equinix will promptly
advise the Representatives (i) when the Final Prospectus, and any amendment or supplement thereto (if required), shall have been
filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, which amendment shall be in a form approved by the Representatives,
(iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any amendment or supplement
to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by Equinix of any notification with respect to
the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding
for such purpose. Equinix will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any
such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain
as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing
an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment
or new registration statement declared effective as soon as practicable.
(b) The
Companies will prepare a final term sheet, containing a description of final terms of the Securities and the offering thereof, in the
form approved by you and attached as Schedule IV hereto and file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
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(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary
to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, Equinix will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package in a form approved
by the Representatives to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities
as you may reasonably request.
(d) If,
at any time when a prospectus relating to any series of Securities is required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to supplement
the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with
use or delivery of the Final Prospectus, Equinix promptly will (i) notify the Representatives of any such event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement
or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in
order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities
as you may reasonably request.
(e) As
soon as practicable, Equinix will make generally available to its security holders and to the Representatives an earnings statement or
statements of Equinix and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Companies will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(g) The
Companies will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided
that in no event shall the Companies be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
13
(h) Each
Underwriter, severally and not jointly, agrees with the Companies that, unless it has or shall have obtained, as the case may be, the
prior written consent of Equinix, it has not made and will not make any offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required
to be filed by the Companies with the Commission or retained by the Companies under Rule 433, other than the free writing prospectus
containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided
that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included
in Schedule III hereto and any electronic road show relating to the offering and sale of the Securities. Any such free writing
prospectus consented to by the Representatives or Equinix is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Companies agree that (x) they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, including without limitation for the purposes of this Agreement and (y) they have complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping.
(i) Before
making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Final Prospectus, whether before or after the time that the Registration Statement
becomes effective, the Companies will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such
Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(j) The
Issuer will not, and, other than with respect to the offering of the 2029 Notes, the 2033 Notes and the 2036 Notes, the Guarantor will
not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise) by the Companies or any affiliate of the Companies), directly or
indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any debt securities issued or guaranteed by the Companies pursuant to an indenture, or publicly announce an intention to
effect any such transaction, until the day after the Closing Date.
(k) The
Companies will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Companies
to facilitate the sale or resale of the Securities.
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(l) Except
as otherwise agreed in writing between the Companies and the Representatives, the Companies agree to pay the costs and expenses relating
to the following matters: (i) the preparation, printing, authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (ii) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and
delivered, including the expenses and fees of the financial printer, in connection with the offering and sale of the Securities; (iii) the
registration of the Securities under the Exchange Act; (iv) any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including filing fees and the reasonably incurred fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (v) the transportation and other expenses incurred by or on
behalf of Companies’ representatives (but not the Underwriters) in connection with presentations to prospective purchasers of the
Securities; (vi) the fees and expenses of the Companies’ accountants and the fees and expenses of counsel (including local
and special counsel) for the Companies; and (vii) all other costs and expenses incident to the performance by the Companies of their
obligations hereunder and under each of the other Operative Documents.
6. Conditions
to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Companies contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Companies made in any certificates pursuant to the provisions hereof, to the performance by the
Companies of their obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the
final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Companies pursuant to
Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings
by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall
have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The
Representatives shall have received (i) the opinion and negative assurance letter of Davis Polk & Wardwell LLP, outside
counsel for the Companies, dated the Closing Date and addressed to the Representatives, to the effect as set forth on Exhibit A
hereto, (ii) the opinion of Kurt Pletcher, Esq., the Chief Legal Officer of Equinix, dated the Closing Date and addressed to
the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of Sullivan & Worcester
LLP, special tax counsel for the Companies, dated the Closing Date and addressed to the Representatives, in form and substance reasonably
satisfactory to the Representatives.
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(c) The
Representatives shall have received from Simpson Thacher & Bartlett LLP, counsel for the Underwriters, such opinion and negative
assurance letter, dated the Closing Date and addressed to the Representatives, with respect to matters as the Representatives may reasonably
require, and the Companies shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(d) The
Companies shall have furnished to the Representatives a certificate of the Companies, signed by, in the case of Equinix, the Chairman
of the Board or the President and the principal financial or accounting officer of Equinix and, in the case of the Issuer, an authorized
signatory, dated the Closing Date, to the effect that:
(i) the
representations and warranties of the Companies in this Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Companies have complied with all the agreements and satisfied all the conditions on each of their
respective parts to be performed or satisfied at or prior to the Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to any of the Companies’ knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results
of operation of Equinix and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) The
Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort”
letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of
the Closing Date and each in form and substance satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort” letters to underwriters with respect to the financial statements and
certain financial information of Equinix and its subsidiaries contained or incorporated by reference in each of the Disclosure Package
and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to
Equinix and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use
a “cut-off” date no more than two Business Days prior to the Closing Date.
(f) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or
decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of Equinix and
its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto).
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(g) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally
recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior
to the Closing Date, the Companies shall have furnished to the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Companies in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this
Section 6 shall be delivered at the office of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, at 2475 Hanover
Street, Palo Alto, CA 94304, on the Closing Date.
7. Reimbursement
of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Companies to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters, the Companies will, jointly and severally, reimburse the
Underwriters severally through the Representatives on demand for all expenses (including fees and disbursements of counsel) that shall
have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification
and Contribution. The Companies agree, jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates,
the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally
filed or in any amendment thereof or caused by any omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to any series of Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Companies
will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Companies by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability which the Companies may otherwise have.
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(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Companies, each of their respective directors, each of
their respective officers and managers, as applicable, who signs the Registration Statement, and each person who controls the Companies
within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Companies to each Underwriter,
but only with reference to written information relating to such Underwriter furnished to the Companies by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have. The Companies acknowledge that the information contained
under the heading “Underwriting” in the Disclosure Package and the Final Prospectus in (x) the sentence related to concessions
to selected dealers, (y) the paragraph related to stabilization transactions and (z) the sentences relating to risk management
and hedging policies of certain Underwriters or their affiliates who have lending relationships with Equinix (for the avoidance of doubt,
such sentences begin with the words “Certain of the underwriters or their affiliates routinely hedge,...”) constitute the
only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Registration Statement, Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonably incurred fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not
include any statement as to any admission of fault, culpability or failure to act by or on behalf of any indemnified party.
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(d) In
the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Companies and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Companies and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Companies on the one hand and by the Underwriters on the other from
the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Companies
and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Companies on the one hand and of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Companies shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by them collectively, and benefits received
by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided
by the Companies on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The Companies and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. In no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each affiliate, director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and each person who controls either of the Companies within the meaning of either
the Act or the Exchange Act, each officer or manager, as applicable, of either of the Companies who shall have signed the Registration
Statement and each director of either of the Companies shall have the same rights to contribution as the Companies, subject in each case
to the applicable terms and conditions of this paragraph (d). The Underwriters’ obligations to contribute pursuant to this Section 8
are several in proportion to their respective purchase obligations and not joint.
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9. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any series of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions
which the principal amount of Securities with respect to such series set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of such series of Securities set forth opposite the names of all the remaining Underwriters) the Securities
with respect to such series which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters
do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Companies
other than as set forth in the last sentence of Section 11. In the event of a default by any Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Companies and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Companies prior
to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in Equinix’s Common
Stock shall have been suspended by the Commission or the NASDAQ Global Select Market or trading in securities generally on the New York
Stock Exchange or the NASDAQ Global Market shall have been suspended or limited or minimum prices shall have been established on either
of such exchanges, (ii) a banking moratorium shall have been declared either by U.S. Federal or New York State authorities, (iii) there
shall have occurred a material disruption in securities settlement or clearance services in the United States, or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the Disclosure
Package or the Final Prospectus (exclusive of any amendment or supplement thereto).
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11. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Companies
or their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or its affiliates or the Companies or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions
of Sections 5(l), 7, 8 and 21 hereof shall survive the termination or cancellation of this Agreement.
12. Notices.
All communications hereunder will be in writing and effective only on receipt, and, (a) if sent to the Representatives, will be mailed,
delivered or telefaxed to the Representatives c/o BNP Paribas Securities Corp., 787 Seventh Avenue, 7th Floor, New York, New
York 10019; Attention: Debt Syndicate Desk, email: dl.us.syndicate.support@us.bnpparibas.com; c/o Deutsche Bank Securities Inc., 1 Columbus
Circle, New York, New York 10019; Attention: Debt Capital Markets – Syndicate Desk, with a copy to General Counsel, email: dbcapmarkets.gcnotices@list.db.com;
c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198; Attention: Registration Department; facsimile: (212)
902-9316; email: prospectus-ny@ny.email.gs.com; c/o HSBC Securities (USA) Inc., 66 Hudson Boulevard, New York, New York 10001; Attention:
DCM Legal Americas, facsimile: 646-366-3229; email: dcmlegalamericas@us.hsbc.com; c/o MUFG Securities Americas Inc., 1221 Avenue of the
Americas, 6th Floor, New York, New York 10020; Attention: Capital Markets Group, facsimile: 646-434-3455; or (b) if sent to the Companies,
will be mailed, delivered or telefaxed to the Chief Legal Officer, (650) 598-6913, and confirmed to it at One Lagoon Drive, Redwood City,
California 94065, Attention: the Legal Department.
13. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the affiliates,
officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. No
Fiduciary Duty. The Companies hereby acknowledge that (a) the purchase and sale of the Securities pursuant to this Agreement
is an arm’s-length commercial transaction between the Companies, on the one hand, and the Underwriters and any affiliate through
which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Companies
and (c) the Companies’ engagement of the Underwriters in connection with the offering and the process leading up to the offering
is as independent contractors and not in any other capacity. Furthermore, the Companies agree that they are solely responsible for making
their own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising
the Companies on related or other matters). The Companies agree that they will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty to the Companies, in connection with such transaction or
the process leading thereto.
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15. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Companies and the Underwriters,
or any of them, with respect to the subject matter hereof.
16. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17. Submission
to Jurisdiction. Each Company irrevocably submits to the exclusive jurisdiction of any New York State or United States Federal court
sitting in The City of New York over any suit, action or proceeding arising out of or relating to this Agreement, the Disclosure Package,
the Final Prospectus or the offering of the Securities. Each Company irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. To the extent that either
Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from
any legal process with respect to itself or its property, such Company irrevocably waives, to the fullest extent permitted by law, such
immunity in respect of any such suit, action or proceeding.
18. Waiver
of Jury Trial.The Companies hereby irrevocably waive, 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 Agreement or the transactions contemplated hereby.
19. Counterparts.This
Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including via www.docusign.com and any
other electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes.
20. Headings.The
section headings used herein are for convenience only and shall not affect the construction hereof.
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21. Definitions.The
terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities
Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean
the base prospectus referred to in the introductory paragraph of this Agreement contained in the Registration Statement at the Execution
Time and all documents incorporated by reference therein.
“Business Day” shall mean any
day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission” shall mean the
Securities and Exchange Commission.
“Disclosure Package” shall mean
(i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer
Free Writing Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant
to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean
the initial date and time that the Registration Statement becomes effective and the date and time that any post-effective amendment or
amendments thereto became or become effective prior to completion or termination of the offering of the Securities to the public pursuant
thereto.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean 4:35 p.m. (New York City time) on July 30, 2026.
“Final Prospectus” shall mean
the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time and
all documents incorporated by reference therein, together with the Base Prospectus.
“Free Writing Prospectus” shall
mean a free writing prospectus, as defined in Rule 405.
“Investment Company Act” shall
mean the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus”
shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall
mean any preliminary prospectus and any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above
which is used prior to the filing of the Final Prospectus and all documents incorporated by reference therein, together with the Base
Prospectus.
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“Registration Statement” shall
mean the registration statement referred to in paragraph 1(a) above, including exhibits, financial statements, any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement
pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended and, in each case, all documents incorporated by
reference therein.
“Rule 158”, “Rule 163”,
“Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under
the Act.
“Trust Indenture Act” shall
mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer”
shall mean a well-known seasoned issuer, as defined in Rule 405.
22. Recognition
of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter that is a Covered
Entity or any BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights
under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or
a state of the United States.
As used in this Section 22:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
24
“Default Right” has
the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank
Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23. Recognition
of the U.K. Bail In Clause For Other Liabilities. Notwithstanding and to the exclusion of any other term of this Agreement
or any other agreements, arrangements, or understanding between any Underwriter subject to the Bail-In Powers of the relevant UK resolution
authority (each, a “UK bail-in party”) and the Companies, the Companies acknowledge and accept that a UK Bail-in Liability
arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges,
accepts, and agrees to be bound by:
(a) the
effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of a UK bail-in
party to the Companies under this Agreement, that (without limitation) may include and result in any of the following, or some combination
thereof:
(i) the
reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(ii) the
conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of any UK bail-in party
or another person, and the issue to or conferral on the Companies of any UK bail-in party of such shares, securities or obligations;
(iii) the
cancellation of the UK Bail-in Liability; and
(iv) the
amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by
suspending payment for a temporary period; and
(b) the
variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise
of UK Bail-in Powers by the relevant UK resolution authority.
As
used in this Section 23:
“UK Bail-in Legislation”
means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound
or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration
or other insolvency proceedings).
“UK
Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK
Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that
is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability
of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares,
securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if
a right had been exercised under it or to suspend any obligation in respect of that liability.
[signature pages follow]
25
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent
a binding agreement among the Companies and the several Underwriters.
Very truly yours,
Equinix, Inc.
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
Equinix Europe 2 Financing Corporation LLC
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Authorized Signatory
[Signature
Page to Equinix Underwriting Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
BNP PARIBAS SECURITIES CORP.
By:
/s/ Rafael Ribeiro
Name:
Rafael Ribeiro
Title:
Managing Director
DEUTSCHE BANK SECURITIES INC.
By:
/s/ Kevin Prior
Name:
Kevin Prior
Title:
Managing Director
By:
/s/ Thomas Short
Name:
Thomas Short
Title:
Managing Director / Debt Syndicate
GOLDMAN SACHS & CO. LLC
By:
/s/ Taylor D. Joss
Name:
Taylor D. Joss
Title:
Managing Director
HSBC SECURITIES (USA) INC.
By:
/s/ Patrice Altongy
Name:
Patrice Altongy
Title:
Managing Director
[Signature
Page to Equinix Underwriting Agreement]
MUFG SECURITIES AMERICAS INC.
By:
/s/ Richard Testa
Name:
Richard Testa
Title:
Managing Director
For themselves and the other several
Underwriters named in
Schedule II to the foregoing
Agreement.
[Signature
Page to Equinix Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated July 30, 2026
Registration Statement Nos. 333-275203, 333-275203-01, 333-275203-02
and 333-275203-03
Representatives: BNP Paribas Securities Corp., Deutsche Bank Securities
Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc. and MUFG Securities Americas Inc.
Title, Purchase Price and Description of the Securities:
Title: 5.250%
Senior Notes due 2031
Principal amount: $850,000,000
Purchase price (include
accrued interest or amortization, if any): 99.028%
Sinking fund provisions: None
Redemption provisions: As set forth in the Disclosure Package
Other provisions: As set forth in the Disclosure Package
Closing Date, Time and Location:
August 6, 2026 at 9:00 a.m. New York City time at
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
Type of Offering: Non-delayed
Modification of items to be covered
by the letter from PricewaterhouseCoopers, LLP (US) delivered pursuant to Section 6(e) at the Execution Time: None.
Exhibit B - 1
SCHEDULE II
Underwriters
Principal Amount
of Securities
to be Purchased
BNP Paribas Securities Corp.
$ 90,950,000
Deutsche Bank Securities Inc.
90,950,000
Goldman Sachs & Co. LLC
90,950,000
HSBC Securities (USA) Inc.
90,950,000
MUFG Securities Americas Inc.
90,950,000
BofA Securities, Inc.
29,750,000
Citigroup Global Markets Inc.
29,750,000
DBS Bank Ltd.
29,750,000
J.P. Morgan Securities LLC
29,750,000
Mizuho Securities USA LLC
29,750,000
SMBC Nikko Securities America, Inc.
29,750,000
Standard Chartered Bank
29,750,000
Evercore Group L.L.C.
51,000,000
ING Financial Markets LLC
17,000,000
Morgan Stanley & Co. LLC
17,000,000
PNC Capital Markets LLC
17,000,000
RBC Capital Markets, LLC
17,000,000
Santander US Capital Markets LLC
17,000,000
Scotia Capital (USA) Inc.
17,000,000
TD Securities (USA) LLC
17,000,000
U.S. Bancorp Investments, Inc.
17,000,000
Total
$ 850,000,000
Exhibit B - 2
SCHEDULE III
Schedule of Free Writing Prospectuses included
in the Disclosure Package (1) Final Term Sheet as set forth in Schedule IV.
Exhibit B - 3
SCHEDULE IV
[See attached Final Term Sheet]
Exhibit B - 4
Issuer Free
Writing Prospectus dated July 30, 2026
(Relating to Preliminary Prospectus Supplement
dated July 30, 2026) Filed Pursuant
to Rule 433
Registration Statement Nos. 333-275203,
333-275203-01, 333-275203-02 and 333-275203-03
Equinix, Inc.
$850,000,000 5.000% Senior Notes due 2029 (the
“2029 Notes”)
$650,000,000 5.500% Senior Notes due 2033 (the
“2033 Notes”)
$650,000,000 5.800% Senior Notes due 2036 (the
“2036 Notes”)
Equinix Europe 2 Financing Corporation LLC
$850,000,000 5.250% Senior Notes due 2031 (the
“2031 Notes”)
(collectively, the “Notes”)
This Final Term Sheet is qualified in its entirety
by reference to the Preliminary Prospectus Supplement. The information in this Final Term Sheet supplements the Preliminary Prospectus
Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in
the Preliminary Prospectus Supplement. Capitalized terms used herein without definition shall have the meanings ascribed thereto in the
Preliminary Prospectus Supplement.
Ratings*:
[INTENTIONALLY OMITTED]
Book-Running Managers:
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
BofA Securities, Inc.
Citigroup Global Markets Inc.
DBS Bank Ltd.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
SMBC Nikko Securities America, Inc.
Standard Chartered Bank
Co-Managers:
Evercore Group L.L.C.
ING Financial Markets LLC
Morgan Stanley & Co. LLC
PNC Capital Markets LLC
RBC Capital Markets, LLC
Santander US Capital Markets LLC
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
U.S. Bancorp Investments, Inc.
Exhibit B - 5
Distribution:
SEC Registered (Registration Nos. 333-275203, 333-275203-01, 333-275203-02 and 333-275203-03)
Use of Proceeds:
To fund the acquisition of additional properties or businesses, fund development opportunities, and to provide for working capital and other general corporate purposes, including but not limited to refinancing upcoming maturities and for repayment of existing borrowings.
Settlement Date:
It is expected that delivery of the Notes will be made against payment therefor on or about August 6, 2026, which is the fifth business day following the date of pricing of the Notes (such settlement cycle being referred to as “T+5”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to closing will be required, by virtue of the fact that the Notes initially will settle in T+5, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement and should consult their own advisors.
Exhibit B - 6
5.000% Senior Notes due 2029
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$850,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2029
Benchmark Treasury:
UST 4.125% due July 15, 2029
Benchmark Treasury Price and Yield:
99-17 / 4.295%
Spread to Benchmark Treasury:
+75 bps
Yield to Maturity:
5.045%
Public Offering Price:
99.874% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$848,929,000
Coupon (Interest Rate):
5.000% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to July 15, 2029 (one month prior to the maturity date of the 2029 Notes) (the “2029 Notes Par Call Date”), the Issuer may redeem the 2029 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
Exhibit B - 7
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes matured on the 2029 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 15 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2029 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2029 Notes Par Call Date, the Issuer may redeem the 2029 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2029 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BV7
ISIN:
US29444UBV70
Exhibit B - 8
5.500% Senior Notes due 2033
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$650,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2033
Benchmark Treasury:
UST 4.250% due June 30, 2033
Benchmark Treasury Price and Yield:
98-13¼ / 4.519%
Spread to Benchmark Treasury:
+110 bps
Yield to Maturity:
5.619%
Public Offering Price:
99.315% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$645,547,500
Coupon (Interest Rate):
5.500% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to June 15, 2033 (two months prior to the maturity date of the 2033 Notes) (the “2033 Notes Par Call Date”), the Issuer may redeem the 2033 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
Exhibit B - 9
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2033 Notes matured on the 2033 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 20 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2033 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2033 Notes Par Call Date, the Issuer may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2033 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BY1
ISIN:
US29444UBY10
Exhibit B - 10
5.800% Senior Notes due 2036
Issuer:
Equinix, Inc.
Guarantor:
None
Principal Amount:
$650,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2036
Benchmark Treasury:
UST 4.375% due May 15, 2036
Benchmark Treasury Price and Yield:
97-23+ / 4.665%
Spread to Benchmark Treasury:
+120 bps
Yield to Maturity:
5.865%
Public Offering Price:
99.510% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$646,815,000
Coupon (Interest Rate):
5.800% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to May 15, 2036 (three months prior to the maturity date of the 2036 Notes) (the “2036 Notes Par Call Date”), the Issuer may redeem the 2036 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
Exhibit B - 11
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2036 Notes matured on the 2036 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 20 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2036 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2036 Notes Par Call Date, the Issuer may redeem the 2036 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2036 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29444U BX3
ISIN:
US29444UBX37
Exhibit B - 12
5.250% Senior Notes due 2031
Issuer:
Equinix Europe 2 Financing Corporation LLC
Guarantor:
Equinix, Inc.
Principal Amount:
$850,000,000
Listing:
None
Scheduled Maturity Date:
August 15, 2031
Benchmark Treasury:
UST 4.125% due June 30, 2031
Benchmark Treasury Price and Yield:
98-27+ / 4.385%
Spread to Benchmark Treasury:
+95 bps
Yield to Maturity:
5.335%
Public Offering Price:
99.628% plus accrued interest, if any, from August 6, 2026
Gross Proceeds to Issuer before Estimated Expenses:
$846,838,000
Coupon (Interest Rate):
5.250% per annum
Interest Payment Dates:
February 15 and August 15 of each year, commencing on February 15, 2027
Interest Record Dates:
February 1 and August 1 of each year
Optional Redemption:
Prior to July 15, 2031 (one month prior to the maturity date of the 2031 Notes) (the “2031 Notes Par Call Date”), the Issuer may redeem the 2031 Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
Exhibit B - 13
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2031 Notes matured on the 2031 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Preliminary Prospectus Supplement) plus 15 basis points, less (b) interest accrued to the date of redemption, and
(2) 100% of the aggregate principal amount of the 2031 Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
On or after the 2031 Notes Par Call Date, the Issuer may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the aggregate principal amount of the 2031 Notes to be redeemed plus accrued and unpaid interest thereon, if any, to but excluding, the redemption date.
CUSIP:
29390X AK0
ISIN:
US29390XAK00
* Note:
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
To the extent any underwriter that is not a
U.S. registered broker-dealer intends to effect sales of notes in the United States, it will do so through one or more U.S. registered
broker-dealers in accordance with the applicable U.S. securities laws and regulations.
Equinix, Inc.
and Equinix Europe 2 Financing Corporation LLC have filed a registration statement (including a prospectus) with the SEC for the offering
to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary
prospectus supplement and other documents Equinix, Inc. or Equinix Europe 2 Financing Corporation LLC has filed with the SEC for
more complete information about Equinix, Inc., Equinix Europe 2 Financing Corporation LLC and this offering. You may get these documents
for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, Equinix, Inc., Equinix Europe 2 Financing
Corporation LLC or any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary
prospectus supplement if you request it by calling BNP Paribas Securities Corp. at 1-800-854-5674 (toll-free), Deutsche Bank Securities
Inc. at 1-800-503-4611 (toll-free), Goldman Sachs & Co. LLC at 1-866-471-2526 (toll-free), HSBC Securities (USA) Inc. at 1-866-811-8049
(toll-free) or MUFG Securities Americas Inc. at 1-877-649-6848 (toll-free).
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED
AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Exhibit B - 14
Exhibit A
FORM OF OPINION OF DAVIS POLK & WARDWELL
LLP
[Circulated Separately]
Exhibit B - 15
FORM OF NEGATIVE ASSURANCE LETTER OF DAVIS
POLK & WARDWELL LLP
[Circulated Separately]
Exhibit B - 16
Exhibit B
FORM OF OPINION OF THE GENERAL COUNSEL
[Circulated Separately]
Exhibit B - 17
EX-4.3 — EXHIBIT 4.3
EX-4.3
Filename: tm2622384d1_ex4-3.htm · Sequence: 4
Exhibit 4.3
EQUINIX, INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee,
5.000% Senior Notes due 2029
Twenty-First Supplemental Indenture
Dated as of August 6, 2026
to
Indenture dated as of December 12, 2017
TABLE
OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions
1
Section 1.02.
Conflicts with Base Indenture
15
ARTICLE 2
THE
NOTES
Section 2.01.
Amount; Series; Terms
15
Section 2.02.
Denominations
15
Section 2.03.
Form of Notes
15
ARTICLE 3
REDEMPTION
AND PREPAYMENT
Section 3.01.
Redemption
16
Section 3.02.
Optional Redemption of the Notes
16
Section 3.03.
[Reserved]
16
Section 3.04.
Repurchase Offer
16
ARTICLE 4
COVENANTS
Section 4.01.
Payment of Notes
18
Section 4.02.
Reports to Holders
18
Section 4.03.
Sale and Leaseback Transactions
18
Section 4.04.
Limitation on Liens
19
Section 4.05.
Offer to Repurchase Upon Change of Control Triggering
Event
19
ARTICLE 5
MERGER,
CONSOLIDATION, OR SALE OF ASSETS
Section 5.01.
Merger, Consolidation, or Sale of Assets
20
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01.
Events of Default
21
Section 6.02.
Other Amendments
23
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT
DEFEASANCE
Section 7.01.
Legal Defeasance and Covenant Defeasance
23
ARTICLE 8
SATISFACTION AND DISCHARGE
-i-
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Amendment, Supplement and Waiver
23
ARTICLE 10
MISCELLANEOUS
Section 10.01.
Sinking Funds
24
Section 10.02.
Supplemental Indenture
24
Section 10.03.
No Guarantees
24
Section 10.04.
Confirmation of Indenture
24
Section 10.05.
Counterpart; Notices
24
Section 10.06.
Governing Law
24
Section 10.07.
Waiver of Jury Trial
24
Section 10.08.
Trustee Disclaimer
24
Exhibit A
Form of Note
A-1
-ii-
TWENTY-FIRST SUPPLEMENTAL INDENTURE, dated as
of August 6, 2026 (this “Supplemental Indenture”), to the Indenture dated as of December 12, 2017 (as amended,
modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities,
the “Base Indenture” and, as amended, modified and supplemented by this Supplemental Indenture, the “Indenture”),
by and between Equinix, Inc. (the “Company,” as more fully set forth in Section 1.01), and U.S. Bank Trust
Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Notes (as defined herein):
WHEREAS, the Company has duly authorized the execution
and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to be issued in one or more
series as provided in the Base Indenture;
WHEREAS, the Company has duly authorized the execution
and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Supplemental Indenture in order
to establish and provide for the issuance by the Company of a series of Notes designated as its 5.000% Senior Notes due 2029 (the “Initial
Notes”) in an aggregate principal amount of $850,000,000, on the terms set forth herein;
WHEREAS, Article 9 of the Base Indenture
provides that a supplemental indenture may be entered into by the parties for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base
Indenture for the execution and delivery of this Supplemental Indenture have been met; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture
with respect to the Notes have been done;
NOW, THEREFORE:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
In addition to the definitions set forth in Article 1
of the Base Indenture, this Supplemental Indenture shall include the following definitions, which, in the event of a conflict with the
definition of terms in the Base Indenture, shall control:
“Additional Notes” has the
meaning set forth in Section 2.01(b).
“Acquired Indebtedness” means
Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or
at the time it merges or consolidates with or into the Company or any of its Subsidiaries or that is assumed in connection with the acquisition
of assets from such Person, in each case whether or not incurred by such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation.
“Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the
Depositary to the extent applicable to such transfer or exchange.
“ASC” means FASB Accounting Standards
Codification.
“Asset Acquisition” means (1) an
investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets
of any Person (other than a Restricted Subsidiary of the Company) that constitute all or substantially all of the assets of such Person
or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary
course of business.
“Attributable Debt” means,
in respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback
Transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback
Transaction.
“Base Indenture” has the meaning
specified in the introductory paragraph of this Supplemental Indenture.
“Cash Equivalents” means:
(a) debt
securities denominated in Euro, pounds sterling or U.S. dollars to be issued or directly and fully guaranteed or insured by the government
of a Participating Member State, the U.K. or the U.S., as applicable, where the debt securities have not more than twelve months to final
maturity and are not convertible into any other form of security;
(b) commercial
paper denominated in Euro, pounds sterling or U.S. dollars maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least P1 from Moody’s and A1 from S&P;
(c) certificates
of deposit denominated in Euro, pounds sterling or U.S. dollars having not more than twelve months to maturity issued by a bank or financial
institution incorporated or having a branch in a Participating Member State in the United Kingdom or the United States, provided
that the bank is rated P1 by Moody’s or A1 by S&P;
(d) any
cash deposit denominated in Euro, pounds sterling or U.S. dollars with any commercial bank or other financial institution, in each case
whose long term unsecured, unsubordinated debt rating is at least A3 by Moody’s or A- by S&P;
(e) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered
into with any bank or financial institution meeting the qualifications specified in clause (d) above; and
(f) investments
in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.
“Change of Control” means the
occurrence of one or more of the following events:
(1) any
sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets
of the Company to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of the Indenture);
(2) the
approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the provisions of the Indenture); or
(3) any
Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company.
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For the avoidance of doubt, the consummation of
the Company Conversion shall not constitute a “Change of Control.”
“Change of Control Offer” has
the meaning set forth in Section 4.05(a).
“Change of Control Payment”
has the meaning set forth in Section 4.05(a).
“Change of Control Payment Date”
has the meaning set forth in Section 4.05(b).
“Change of Control Triggering Event”
means, in each case, the occurrence of both (i) a Change of Control and (ii) a Rating Event.
“Company” has the meaning specified
in the introductory paragraph of this Supplemental Indenture, and subject to the provisions of ARTICLE 5, shall include its successors
and assigns.
“Company Conversion” means
the actions taken by the Company and its Subsidiaries in connection with Company’s qualification as a REIT, including without limitation,
(y) separating from time to time all or a portion of its United States and international businesses into, as defined by the Code,
taxable REIT subsidiaries (“TRS”) and/or qualified REIT subsidiaries (“QRS”) (it being understood
that any such TRS and/or QRS shall remain Restricted Subsidiaries, as applicable, as prior to the Company Conversion) and (z) amending
its charter to impose ownership limitations on the Company’s Capital Stock directly or indirectly by merging into a Wholly Owned
Restricted Subsidiary of the Company.
“Consolidated Depreciation, Amortization
and Accretion Expense” means with respect to any Person for any period, the total amount of depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period)
and accretion expense, including the amortization of deferred financing fees or costs of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means,
with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased
(without duplication) by the following, in each case to the extent deducted in determining Consolidated Net Income for such period:
(1) provision
for taxes based on income or profits or capital, including, without limitation, federal, state, franchise and similar taxes and foreign
withholding taxes (including any levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed
by a governmental agency, and any related interest, penalty, charge, fee or other amount) of such Person paid or accrued during such
period deducted (and not added back) in computing Consolidated Net Income; plus
(2) Consolidated
Interest Expense of such Person for such period to the extent the same were deducted (and not added back) in calculating such Consolidated
Net Income; plus
(3) Consolidated
Depreciation, Amortization and Accretion Expense of such Person for such period to the extent that the same were deducted (and not added
back) in computing Consolidated Net Income; plus
(4) any
expenses or charges (other than depreciation or amortization expense) related to any Equity Offering or the incurrence of Indebtedness
permitted to be incurred in accordance with the Indenture (including a refinancing thereof) (whether or not successful), in each case,
deducted (and not added back) in computing Consolidated Net Income; plus
(5) any
other Non-cash Charges, including any provisions, provision increases, write-offs or write-downs reducing Consolidated Net Income for
such period (provided that if any such Non-cash Charges represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent), and excluding
amortization of a prepaid cash item that was paid in a prior period; plus
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(6) any
costs or expenses incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement or any stock subscription or stockholder agreement, to the extent that such cost
or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest
of the Company (other than Disqualified Capital Stock); plus
(7) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net
Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant
to clause (b) below for any previous period and not added back; plus
(8) any
net loss from disposed or discontinued operations; plus
(9) any
net unrealized loss (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized loss on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
(10) any
net unrealized loss (after any offset) resulting in such period from (A) currency translation or exchange losses including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates; plus
(11) the
amount of any minority interest expense (less the amount of any cash dividends paid in such period to holders of such minority interests);
plus
(12) the
amount of any costs and expenses associated with the Company Conversion, including, without limitation, planning and advisory costs related
to the foregoing; and
(b) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(1) non-cash
gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the
reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains
with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period;
(2) any
net gain from disposed or discontinued operations;
(3) any
net unrealized gain (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized gain on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
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(4) any
net unrealized gains (after any offset) resulting in such period from (A) currency translation or exchange gains including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates.
For purposes of this definition, calculations
shall be done after giving effect on a pro forma basis for the period of such calculation to:
(1) the
incurrence or repayment of any Indebtedness or the designation or elimination (including by de-designation) of any Designated Revolving
Commitments of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need
to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment of Indebtedness or designation or elimination (including by de-designation)
of Designated Revolving Commitments, as the case may be (and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period (and in the case of Designated Revolving Commitments, as if Indebtedness in the full amount of any undrawn Designated
Revolving Commitments had been incurred throughout such period); and
(2) any
asset sales or other dispositions or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated
under the Exchange Act) attributable to the assets which are the subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any
of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect
to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness.
“Consolidated Interest Expense”
means, with respect to any Person for any period, the sum of, without duplication:
(1) the
aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any amortization of debt discount and the amortization or write-off of deferred
financing costs, including commitment fees; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest;
(d) non-cash interest expense (other than non-cash interest on any convertible or exchangeable debt issued by the Company that exists
by virtue of the bifurcation of the debt and equity components of such convertible or exchangeable notes and the application of ASC 470-20
(or related accounting pronouncement(s))); (e) commissions, discounts and other fees and charges owed with respect to letters of
credit and banker’s acceptance financing; (f) dividends with respect to Disqualified Capital Stock; (g) dividends with
respect to Preferred Stock of Restricted Subsidiaries of such Person; (h) imputed interest with respect to Sale and Leaseback Transactions;
and (i) the interest portion of any deferred payment obligation; plus
(2) the
interest component of Finance Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP; less
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(3) interest
income for such period.
“Consolidated Net Income” means,
with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication):
(1) any
after tax effect of extraordinary, non-recurring or unusual gains or losses (including all fees and expenses relating thereto) or expenses;
(2) any
net after tax gains or losses on disposal of disposed, abandoned or discontinued operations;
(3) any
after tax effect of gains or losses (including all fees and expenses relating thereto) attributable to sale, transfer, license, lease
or other disposition of assets or abandonments or the sale, transfer or other disposition of any Equity Interest of any Person other
than in the normal course of business;
(4) the
net income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the
equity method of accounting, except to the extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary
of the Company by such Person;
(5) any
after tax effect of income (loss) from the early extinguishment of (1) Indebtedness, (2) obligations under any Currency Agreement
or (3) other derivative instruments;
(6) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant
to GAAP, and the amortization of intangibles arising pursuant to GAAP;
(7) any
non-cash compensation charge or expense including any such charge arising from the grants of stock appreciation or similar rights, stock
options, restricted stock or other rights;
(8) any
fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any issuance or repayment
of Indebtedness, issuance of Equity Interests, refinancing transaction, amendment or modification of any debt instrument;
(9) income
or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued);
(10) in
the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any
earnings of the successor entity prior to such consolidation, merger or transfer of assets;
(11) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by contract, operation of law or otherwise; and
(12) acquisition-related
costs resulting from the application of ASC 805.
In addition, to the extent not already included
in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
but without duplication, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any
sale, conveyance, transfer or other disposition of assets permitted under the Indenture (in each case, whether or not non-recurring).
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“Currency Agreement” means
any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.08 of the Base Indenture, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global Security Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“delivered” with respect to
any notice to be delivered, given or mailed to a Holder pursuant to the Indenture, shall mean (x) notice given to the Depositary
(or its designee) in accordance with accepted procedures of the Depositary (in the case of a Global Note) or (y) notice mailed to
such Holder by first class mail, postage prepaid, at its address as it appears on the register of Holders. Notice so “delivered”
shall be deemed to include any notice to be “mailed” or “given,” as applicable, under the Indenture.
“Designated Revolving Commitments”
means the amount or amounts of any commitments to make loans or extend credit on a revolving basis to the Company or any of its Restricted
Subsidiaries by any Person other than the Company or any of its Restricted Subsidiaries that has or have been designated (but only to
the extent so designated) in an Officers’ Certificate delivered to the Trustee as “Designated Revolving Commitments”
until such time as the Company subsequently delivers an Officers’ Certificate to the Trustee to the effect that the amount or amounts
of such commitments shall no longer constitute “Designated Revolving Commitments.”
“Disqualified Capital Stock”
means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute
a Change of Control), matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control), in each case, on or prior to the
final maturity date of the Notes.
“Domestic Restricted Subsidiary”
means a Restricted Subsidiary incorporated or otherwise organized under the laws of the United States, any State thereof or the District
of Columbia.
“Electronic Signatures” has
the meaning set forth in Section 10.05.
“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 any
public or private sale of Common Stock or Preferred Stock of the Company (excluding Disqualified Capital Stock), other than:
(a) public
offerings with respect to the Company’s or any direct or indirect parent company’s common stock registered on Form S-4
or Form S-8 (or similar forms under non-U.S. law);
(b) issuances
to any Subsidiary of the Company;
(c) issuances
pursuant to the exercise of options or warrants outstanding on the date hereof;
(d) issuances
upon conversion of securities convertible into Common Stock outstanding on the date hereof;
(e) issuances
in connection with an acquisition of property in a transaction entered into on an arm’s-length basis; and
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(f) issuances
pursuant to employee stock plans.
“Euro” means the lawful currency
of the member states of the European Union who have agreed to share a common currency in accordance with the provisions of the Maastricht
Treaty dealing with European monetary union.
“Event of Default” has the
meaning set forth in Section 6.01.
“fair market value” means,
with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
Fair market value shall be determined by the Board of Directors of the Company or any duly appointed officer of the Company or a Restricted
Subsidiary, as applicable, acting reasonably and in good faith and, in respect of any asset or property with a fair market value in excess
of $100.0 million, shall be determined by the Board of Directors of the Company and shall be evidenced by a Board Resolution of the Board
of Directors of the Company delivered to the Trustee.
“Finance Lease Obligations”
means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as finance
lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
“Fitch” means Fitch Ratings
Inc. or any successor to the rating agency business thereof.
“Four Quarter Period” means
the period of four full fiscal quarters for which financial statements are available ending prior to the date of the transaction (the
“Transaction Date”) giving rise to the need to make such calculation.
“GAAP” means generally accepted
accounting principles set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect
as of July 11, 2011.
“Global Notes” means, individually
and collectively, each of the Global Securities 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 Security Legend and that has the “Schedule
of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.03 of the Base Indenture
and Section 2.03 hereof.
“Holder” means a Person in
whose name a Note is registered.
“incur” means, collectively,
create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible
for payment of (collectively, “incur”) any Indebtedness.
“Indebtedness” means with respect
to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
(2) all
Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all
Finance Lease Obligations and all Attributable Debt of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations
under any title retention agreement (but excluding (i) trade accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 120 days or more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet
of such Person in accordance with GAAP);
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(5) all
Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other
than obligations with respect to letters of credit (A) securing Obligations (other than Obligations described in (1)-(4) above)
entered into the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or (B) that are otherwise cash collateralized;
(6) guarantees
and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
(7) all
Obligations of any other Person of the type referred to in clauses (1) through (6) that are secured by any Lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset
or the amount of the Obligation so secured;
(8) all
Obligations under Currency Agreements and Interest Swap Obligations of such Person;
(9) all
Disqualified Capital Stock issued by such Person or Preferred Stock issued by such Person’s non-Domestic Restricted Subsidiaries
with the amount of Indebtedness represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; and
(10) the
aggregate amount of Designated Revolving Commitments in effect on such date.
For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value
of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors
of the issuer of such Disqualified Capital Stock.
“Indenture” means the Base
Indenture, as supplemented by this Supplemental Indenture, as amended or supplemented from time to time.
“Initial Notes” has the meaning
specified in the recitals of this Supplemental Indenture.
“Interest Swap Obligations”
means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
“Interest Payment Date” has
the meaning set forth in Section 2.01(d).
“Investment Grade Rating” means
a rating equal to or greater than BBB- by S&P and Fitch and Baa3 by Moody’s or the equivalent thereof under any new ratings
system if the ratings system of any such agency shall be modified after the Issue Date, or the equivalent rating of any other Rating
Agency selected by the Company as provided in the definition of “Rating Agency.”
“Issue Date” means August 6,
2026.
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“Material Subsidiary” means
a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act.
“Moody’s” means Moody’s
Investors Service, Inc., or any successor to the rating agency business thereof.
“Non-cash Charges” means, with
respect to any Person, (a) losses on asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related
to intangible assets, long-lived assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from investments
recorded using the equity method, (d) stock-based awards compensation expense, and (e) other non-cash charges (provided
that if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period).
“Notes” means, for all purposes
under the Indenture (including, without limitation, the covenants set forth in the Base Indenture) the Initial Notes issued on the date
hereof and any Additional Notes. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under
the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional
Notes.
“Obligations” means all obligations
for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“Offer Amount” has the meaning
set forth in Section 3.04.
“Offer Period” has the meaning
set forth in Section 3.04.
“Officers’ Certificate”
means a certificate signed by two Officers, at least one of whom shall be the principal executive officer or principal financial officer
of the Company, and delivered to the Trustee.
“Par Call Date” means July 15,
2029.
“Pari Passu Indebtedness” means
any Indebtedness of the Company that ranks pari passu in right of payment with the Notes.
“Participating Member State”
means each state, so described in any European Monetary Union legislation, which was a participating member state on December 31,
2003.
“Permitted Liens” means the
following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with
past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;
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(5) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material
respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(6) any
interest or title of a lessor under any Finance Lease Obligation; provided that such Liens do not extend to any property or assets
which is not leased property subject to such Finance Lease Obligation (other than other property that is subject to a separate lease
from such lessor or any of its Affiliates);
(7) Liens
securing Purchase Money Indebtedness incurred in the ordinary course of business; provided that (a) such Purchase Money Indebtedness
shall not exceed the purchase price or other cost of such property or equipment and shall not be secured by any property or equipment
of the Company or any Restricted Subsidiary of the Company other than the property and equipment so acquired or other property that was
acquired from such seller or any of its Affiliates with the proceeds of Purchase Money Indebtedness and (b) the Lien securing such
Purchase Money Indebtedness shall be created within 360 days of such acquisition;
(8) 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;
(9) 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;
(10) Liens
securing Interest Swap Obligations;
(11) Liens
securing Indebtedness under Currency Agreements;
(12) Liens
securing Acquired Indebtedness; provided that
(a) such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company; and
(b) such
Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(13) Liens
on assets of a Restricted Subsidiary of the Company;
(14) leases,
subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(15) banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;
(16) Liens
arising from filing Uniform Commercial Code financing statements regarding leases;
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(17) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation
of goods;
(18) Liens
(a) on inventory held by and granted to a local distribution company in the ordinary course of business and (b) in accounts
purchased and collected by and granted to a local distribution company that has agreed to make payments to the Company or any of its
Restricted Subsidiaries for such amounts in the ordinary course of business;
(19) [Reserved];
(20) Liens
securing Indebtedness in respect of Sale and Leaseback Transactions;
(21) [Reserved];
(22) Liens
securing Indebtedness in respect of mortgage financings; and
(23) Liens
with respect to obligations (including Indebtedness) of the Company or any of its Restricted Subsidiaries otherwise permitted under the
Indenture that do not exceed an amount equal to (x) 3.5 times (y) the Consolidated EBITDA of the Company for the Four
Quarter Period to and including the most recent fiscal quarter for which financial statements are internally available immediately preceding
such date.
“Prospectus” means the prospectus
dated February 13, 2026, as supplemented by the prospectus supplement dated July 30, 2026, prepared by the Company in connection
with the offering of the Initial Notes.
“Purchase Date” has the meaning
set forth in Section 3.04.
“Purchase Money Indebtedness”
means Indebtedness of the Company and its Restricted Subsidiaries incurred in the normal course of business for the purpose of financing
all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment.
“Rating Agency” means (1) each
of Fitch, Moody’s and S&P and (2) if Fitch, Moody’s or S&P ceases to rate the Notes for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62)
of the Exchange Act selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“Rating Event” means that the
Notes are downgraded by at least one rating category from the applicable rating of such Notes on the first day of the Trigger Period
by two of the Rating Agencies and/or cease to be rated by two of the Rating Agencies, in each case, on any date during the Trigger Period;
provided that a Rating Event will not be deemed to have occurred unless the rating category of the Notes is below an Investment
Grade Rating by two of the Rating Agencies; provided, further, that a Rating Event will not be deemed to have occurred
in respect of a particular Change of Control if each applicable downgrading Rating Agency does not publicly announce or confirm or inform
the Trustee in writing at the Company’s request that the reduction was the result of the Change of Control (whether or not the
applicable Change of Control has occurred at the time of the Change of Control Triggering Event). Notwithstanding the foregoing, no Rating
Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has
actually been consummated; provided that in the event that a Rating Agency does not provide a rating of Notes on the first day
of the Trigger Period, such absence of rating shall be treated as both a downgrade in the rating of such Notes below an Investment Grade
Rating by such Rating Agency and a downgrade that results in such Notes no longer being rated at the rating category in effect on the
first day of the Trigger Period by such Rating Agency, in each case, and shall not be subject to the second proviso in the immediately
preceding sentence. The Trustee shall have no obligation to determine whether a Rating Event has occurred.
“Redemption Date” has the meaning
set forth in Section 3.02(a).
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“REIT” means a “real
estate investment trust” as defined and taxed under Sections 856-860 of the Code.
“Repurchase Offer” has the
meaning set forth in Section 3.04.
“Restricted Subsidiary” of
any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.
“S&P” means Standard &
Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.
“Sale and Leaseback Transaction”
means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company
or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired,
which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from
whom funds have been or are to be advanced by such Person on the security of such property.
“Subordinated Indebtedness”
means Indebtedness of the Company that is subordinated or junior in right of payment to the Notes.
“Supplemental Indenture” has
the meaning specified in the introductory paragraph of this Supplemental Indenture.
“Tax” or “Taxes”
means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings (including backup withholdings), fees
and any charges of a similar nature (including interest, fines, penalties and other liabilities with respect thereto) that are imposed
by any government or other taxing authority.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
“Transaction Date” has the
meaning assigned thereto in the definition of “Four Quarter Period.”
“Treasury Rate”
means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the Redemption Date to the Par Call Date (the “Remaining Life”);
or
(2) if there is no such Treasury constant maturity on H.15 exactly equal
to the Remaining Life, the two yields – one yield corresponding to the Treasury constant
maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life – and shall interpolate
to the Par Call Date on a straight-line basis (using the actual number of days) using such
yields and rounding the result to three decimal places; or
(3) if there is no such Treasury constant maturity on H.15 shorter than
or longer than the Remaining Life, the yield for the single Treasury constant maturity on
H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury
constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to
the relevant number of months or years, as applicable, of such Treasury constant maturity
from the Redemption Date.
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If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual
yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed
as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three
decimal places.
“Trigger Period” means the
60-day period commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control (which Trigger Period will be
extended so long as the ratings of the Notes are under publicly announced consideration for possible downgrade by any two of the three
Rating Agencies); provided that the Trigger Period will terminate with respect to each Rating Agency when such Rating Agency takes action
(including affirming its existing ratings) with respect to such Change of Control.
“Trustee” has the meaning specified
in the introductory paragraph of this Supplemental Indenture.
“Unrestricted Subsidiary” of
any Person means:
(1) any
Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board
of Directors of such Person in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided that each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any
of its Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if, immediately before and immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.
“Wholly Owned Restricted Subsidiary”
means a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company
or another Wholly Owned Restricted Subsidiary.
Whenever this Supplemental Indenture refers to
a provision of the TIA, the provision is incorporated by reference in and made a part of this Supplemental Indenture.
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All terms used in this Supplemental Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings
so assigned to them.
Section 1.02. Conflicts
with Base Indenture. In the event that any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision
of the Base Indenture, such provision of this Supplemental Indenture shall control.
ARTICLE 2
THE NOTES
Section 2.01. Amount;
Series; Terms.
(a) There
is hereby created and designated one series of Notes under the Base Indenture: the title of the Notes shall be “5.000% Senior Notes
Due 2029.” The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Notes that may be issued under the
Base Indenture unless a supplemental indenture with respect to such other series of Notes specifically incorporates such changes, modifications
and supplements.
(b) The
initial aggregate principal amount of Notes is $850,000,000. The Company shall be entitled to issue additional notes under this Supplemental
Indenture (“Additional Notes”) 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; provided that
such issuance is not prohibited by the terms of the Indenture. Any such Additional Notes shall be consolidated and form a single series
with the Initial Notes initially issued including for purposes of voting and redemption; provided that if such Additional Notes
are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall have one or more separate CUSIP
numbers. With respect to any Additional Notes, the Company shall set forth in a Board Resolution of its Board of Directors and in an
Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information: (i) the aggregate
principal amount of such Additional Notes to be authenticated and delivered pursuant to this Supplemental Indenture; and (ii) 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.
(c) The
Stated Maturity of the Notes shall be August 15, 2029. The Notes shall be payable and may
be presented for payment, purchase, redemption, registration of transfer and exchange, without service charge, at the office of the Company
maintained for such purpose in the United States, which shall initially be the office or agency of the Trustee in the United States.
(d) The
Notes shall bear interest at the rate of 5.000% per annum from August 6, 2026, or from the most recent date to which interest has
been paid or duly provided for, as further provided in the forms of Global Note annexed hereto as Exhibit A. Interest shall
be computed on the basis of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be payable (each,
an “Interest Payment Date”) shall be February 15 and August 15 of each year, beginning on February 15,
2027, and the record date for any interest payable on each such Interest Payment Date shall be the immediately preceding February 1
or August 1, respectively.
(e) The
Notes will be issued in the form of one or more Global Notes, deposited with the Trustee as custodian for the Depositary or its nominee,
duly executed by the Company and authenticated by the Trustee as provided in Sections 2.03 and 2.04 of the Base Indenture.
Section 2.02. Denominations.
The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 and any multiple of $1,000
in excess thereof.
Section 2.03. Form of
Notes. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto.
However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Redemption.
Pursuant to Section 3.01 of the Base Indenture, the following additional redemption provisions in this Article 3 shall apply
to the Notes.
Section 3.02. Optional
Redemption of the Notes.
(a) Prior
to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption
price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (as
defined below) (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption (the “Redemption
Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed, plus, in either case, accrued and
unpaid interest thereon, if any, to but excluding the Redemption Date (the “Make-Whole Premium”).
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Neither
the Trustee nor any Paying Agent shall have any obligation to calculate or verify the calculation of the Make-Whole Premium.
(d) The
provisions of Section 3.01 through Section 3.06 of the Base Indenture shall not apply to the Notes, and the following
provisions shall apply in lieu thereof:
(i) In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair.
(ii) No
Notes of a principal amount of $2,000 or less shall be redeemed in part.
(iii) Notice
of redemption will be delivered at least 10 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed,
the Trustee and the Paying Agent; provided that, if the redemption notice is issued in connection with a defeasance of the Notes
or satisfaction and discharge of the Indenture governing the Note in accordance with the Indenture, the notice of redemption may be delivered
more than 60 calendar days before the date of redemption. If any Note is to be redeemed in part only, then the notice of redemption that
relates to such Note must state the portion of the principal amount of such Note to be redeemed. A new Note in a principal amount equal
to the unredeemed portion of such Note will be issued in the name of the Holder of such Note upon cancellation of the original Note.
Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the
Notes or portions thereof called for redemption.
(e) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(f) For
so long as the Notes are held by the Depositary (or another depositary), any redemption of the Notes shall be done in accordance with
the Applicable Procedures.
Section 3.03. [Reserved].
Section 3.04. Repurchase
Offer. In the event that, pursuant to Section 4.05 hereof, the Company or a Restricted Subsidiary is required to commence an
offer to all Holders to purchase Notes (a “Repurchase Offer”), it shall follow the procedures specified below.
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The Repurchase Offer shall remain open for a period
of at least 20 Business Days following its commencement, except to the extent that a shorter or longer period is permitted or required,
as the case may be, by applicable law (the “Offer Period”). No later than five Business Days after the termination
of the Offer Period (the “Purchase Date”), the Company will purchase at the purchase price (as determined in accordance
with Section 4.05 hereof, as the case may be) the principal amount of Notes required to be purchased pursuant to Section 4.05
hereof, as the case may be (the “Offer Amount”) and, if required, Pari Passu Indebtedness (on a pro rata basis, if
applicable), or, if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered in response to the Repurchase
Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
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, to, but not including, the Purchase
Date 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 Repurchase Offer.
Upon the commencement of a Repurchase Offer, the
Company will deliver or cause to be delivered a notice to each of the Holders, with a copy to the Trustee. The notice will contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Repurchase Offer. The notice, which will
govern the terms of the Repurchase Offer, will state:
(a) that
the Repurchase Offer is being made pursuant to this Section 3.04, and Section 4.05 hereof, and the length of time the Repurchase
Offer will remain open;
(b) the
Offer Amount, the purchase price and the Purchase Date;
(c) that
any Note not tendered or accepted for payment will continue to accrue interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue
interest after the Purchase Date;
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in minimum denominations of
$2,000, or integral multiples of $1,000 in excess thereof;
(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” attached to the Note 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;
(g) 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 telegram, telex, facsimile transmission or letter 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;
(h) that,
if the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee
will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by the Trustee so that no Notes in denominations of $2,000 or less will be purchased
in part); and
(i) 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).
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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
validly tendered pursuant to the Repurchase 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 3.04. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date)
deliver 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 deliver (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. Notwithstanding any other provision in the Indenture to the contrary, neither an Opinion of Counsel nor an Officers’
Certificate is required for the Trustee to authenticate such new Note. Any Note not so accepted shall be promptly returned by the Company
to the Holder thereof. The Company will publicly announce the results of the Repurchase Offer on or as soon as practicable after the
Purchase Date.
Other than as specifically provided in this Section 3.04
or Section 4.05 of this Supplemental Indenture, as applicable, any purchase pursuant to this Section 3.04 shall be made pursuant
to the applicable provisions of Section 3.01 through Section 3.06 of the Base Indenture.
ARTICLE 4
COVENANTS
In addition to the covenants set forth in Article 4
of the Base Indenture, the Notes shall be subject to the following additional covenants. Such additional covenants set forth in Sections
4.03 through Section 4.05 below shall be subject to covenant defeasance pursuant to Section 8.03 of the Base Indenture.
Section 4.01. Payment
of Notes. The following paragraph shall be added following the first paragraph of Section 4.01 of the Base Indenture: “The
Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, at the rate equal to 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 such rate to the extent lawful. Interest will be computed daily on the Notes on the basis of a 360-day year comprised of twelve 30-day
months (US 30/360)”.
Section 4.02. Reports
to Holders. The following sentence shall be added to the end of the second paragraph of Section 4.03 of the Base Indenture:
“If the Company had any Unrestricted Subsidiaries during the relevant period, the Company will also provide to the Trustee and,
upon request, to any Holder of the Notes, information sufficient to ascertain the financial condition and results of operations of the
Company and its Restricted Subsidiaries, excluding in all respects the Unrestricted Subsidiaries.”
Section 4.03. Sale
and Leaseback Transactions. The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any property or assets unless:
(1) the
Sale and Leaseback Transaction is solely with the Company or a Restricted Subsidiary;
(2) the
lease is for a period not in excess of 36 months (or which may be terminated by the Company or any of its Subsidiaries within a period
of not more than 36 months);
(3) the
Company would be able to incur Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction without equally and
ratably securing the Notes pursuant to Section 4.04(b) (other than in reliance on clause (20) of the definition of “Permitted
Liens”); or
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(4) the
Company or such Restricted Subsidiary within 365 days after the sale of such property in connection with such Sale and Leaseback Transaction
is completed, applies an amount equal to the net proceeds of the sale of such property to (i) the redemption of Notes, other Indebtedness
of the Company ranking on a parity with the Notes in right of payment or Indebtedness of the Company or a Restricted Subsidiary or (ii) the
purchase of other property; provided that, in lieu of applying such amount to the retirement of Pari Passu Indebtedness, the Company
may deliver Notes to the Trustee for cancellation; such Notes to be credited at the cost thereof to the Company.
Section 4.04. Limitation
on Liens. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom unless:
(a) in
the case of Liens securing Subordinated Indebtedness, the Notes are secured by a Lien on such property, assets or proceeds that is senior
in priority to such Liens; and
(b) in
all other cases, the Notes are equally and ratably secured,
except for:
(1) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(2) Liens
securing the Company’s and its Restricted Subsidiaries’ Obligations under any hedge facility permitted under the Indenture
to be entered into by the Company and its Restricted Subsidiaries;
(3) Liens
securing the Notes;
(4) Liens
in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company;
and
(5) Permitted
Liens.
(c) With
respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness,
such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any
Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, whether payable in
cash or in kind, accretion or amortization of original issue discount, imputed interest, the payment of interest in the form of additional
Indebtedness with the same terms or the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class, and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies
or increases in the value of property securing Indebtedness.
Section 4.05. Offer
to Repurchase Upon Change of Control Triggering Event.
(a) Upon
the occurrence of a Change of Control Triggering Event, unless the Company or a third party has previously or concurrently delivered
a redemption notice with respect to all outstanding Notes as described under Section 3.02, the Company will be required to make
an offer to purchase each Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”),
at a purchase price (the “Change of Control Payment”) equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to but not including the date of purchase.
(b) Within
30 days following the date upon which the Change of Control Triggering Event occurred, the Company must send (in the case of Notes represented
by Global Notes, in accordance with the Applicable Procedures), or cause the Trustee to send, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the Purchase
Date, which must be no earlier than 10 days nor later than 60 days after the date such notice is delivered, other than as may be required
by law (the “Change of Control Payment Date”). Holders electing to have a Note purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Note completed and specifying the portion (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s
Notes that it agrees to sell to the Company pursuant to the Change of Control Offer, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
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(c) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.05,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under
the provisions of this Section 4.05 by virtue of such conflict.
(d) On
the date of such Change of Control Payment, 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.
(e) The
Paying Agent will promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount
of $2,000 or an integral multiple of $1,000. The Company will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the date of such Change of Control Payment.
(f) The
Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if 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 the Indenture applicable
to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer. The Company (or a third party) may make a Change of Control Offer in advance of, and conditioned upon, any Change of Control Triggering
Event.
ARTICLE 5
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Notes shall not be subject to Section 5.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 5.01 of this Supplemental
Indenture:
Section 5.01. Merger,
Consolidation, or Sale of Assets.
(a) The
Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a consolidated basis for
the Company and the Company’s Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
(1) either:
(A) the
Company shall be the surviving or continuing corporation; or
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(B) the
Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”):
(i) shall
be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and
(ii) shall
expressly assume, by supplemental indenture (in form satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, interest on all of the Notes and the performance of every covenant of the
Notes and the Indenture on the part of the Company to be performed or observed;
(2) immediately
before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) of this Section 5.01(a),
no Default or Event of Default shall have occurred or be continuing; and
(3) the
Company or the Surviving Entity shall have delivered to the Trustee an 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 the Indenture
and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
(b) For
purposes of the provisions of Section 5.01(a) hereof, the transfer (by lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company,
in a single or a series of related transactions, which properties and assets, if held by the Company instead of such Restricted Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be
the transfer of all or substantially all of the properties and assets of the Company.
(c) Notwithstanding
clauses (1) and (2) of Section 5.01(a) hereof, but subject to the proviso in clause (1)(B)(i) of Section 5.01(a),
the Company may merge with (x) any of its Wholly Owned Restricted Subsidiaries or (y) an Affiliate that is a Person that has
no material assets or liabilities and which was organized solely for the purpose of reorganizing the Company in another jurisdiction.
For the avoidance of doubt, nothing in this Section 5.01 shall prevent the Company or a Restricted Subsidiary from consummating
the Company Conversion.
ARTICLE 6
EVENTS OF DEFAULT
The Notes shall not be subject to Section 6.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 6.01 of this Supplemental
Indenture:
Section 6.01. Events
of Default. Any of the following events shall constitute an event of default (an “Event of Default”):
(a) the
failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;
(b) the
failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer) on the date specified for such payment
in the applicable offer to purchase;
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(c) a
default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a
period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except (i) in the case of a default
with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of
time requirement and (ii) as otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture);
(d) the
failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any
such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been so accelerated
(in each case with respect to which the 30-day period described above has passed), equals $500.0 million or more at any time;
(e) the
Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Material Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a custodian for it or for all or substantially all of its property,
(4) makes
a general assignment for the benefit of its creditors, or
(5) an
admission by the Company in writing of its inability to pay its debts as they become due;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case;
(2) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary; or
(3) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary; and the order or decree remains unstayed and in effect for
60 consecutive days.
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Section 6.02. Other
Amendments. The Notes shall be subject to Section 6.02 through Section 6.11 of the Base Indenture, except that the references
to “clause (d) or (e) of Section 6.01 hereof” in Section 6.02 of the Base Indenture shall be deemed references
to “clause (e) or (f) of Section 6.01 with respect to the Company” of this Supplemental Indenture.
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01. Legal
Defeasance and Covenant Defeasance. The Notes shall be subject to Article 8 of the Base Indenture, except that:
(a) Section 8.03
of the Base Indenture is amended by replacing the final sentence thereof with the following: “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, Section 6.01(c) and Section 6.01(f) hereof will not constitute Events of Default
with respect to the Notes”.
(b) Section 8.04(a) of
the Base Indenture is amended by replacing such Section 8.04(a) with the following: “The Company must irrevocably deposit
with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee), for the benefit of the Holders, cash in U.S.
Dollars, non-callable U.S. government obligations, rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case
may be.”
(c) Section 8.04(e) of
the Base Indenture is amended by including “or any of its Restricted Subsidiaries” immediately following each of the last
two instances of “the Company” in such Section 8.04(e).
(d) Section 8.04(h) of
the Base Indenture is amended by replacing such Section 8.04(h) with the following: “[Reserved.]”
ARTICLE 8
SATISFACTION AND DISCHARGE
The Notes shall be subject to Article 10
of the Base Indenture, except that:
(a) Paragraph (2) of clause (a) of
Section 10.01 of the Base Indenture is amended by replacing such paragraph (2) with the following: “all Notes not theretofore
delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable within one year,
or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee) funds in an amount in cash in
U.S. dollars, non-callable U.S. government obligations rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal
of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be.”
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Amendment,
Supplement and Waiver. The Notes shall be subject to Article 9 of the Base Indenture, except that:
(a) Section 9.02(6) is
amended by replacing “; or” at the end of such clause (6) with“;”;
(b) Section 9.02(7) is
amended by replacing the period at the end of such clause (7) with “;”; and
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(c) immediately
following Section 9.02(7), as amended above, the following clause shall be added: “(8) after the Company’s obligation
to purchase Notes arises under the Indenture or the Notes, amend, change or modify in any material respect the obligation of the Company
to make and consummate a Change of Control Offer in the event of a Change of Control Triggering Event or, after such Change of Control
Triggering Event has occurred, modify any of the provisions or definitions of the Indenture or the Notes with respect thereto.”
ARTICLE 10
MISCELLANEOUS
Section 10.01. Sinking
Funds. The Notes shall not have the benefit of a sinking fund.
Section 10.02. Supplemental
Indenture. The terms of this Supplemental Indenture may be modified as set forth in Article 9 of the Base Indenture as provided
in such Article 9 after giving effect to Article 9 of this Supplemental Indenture.
Section 10.03. No
Guarantees. The Notes will not be guaranteed by any Subsidiary of the Company or entitled to any guarantee.
Section 10.04. Confirmation
of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Section 10.05. Counterpart;
Notices. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement. Counterparts may be delivered via facsimile and electronic mail (including any Electronic Signature)
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This Supplemental Indenture shall be subject to Section 11.02 of the Base Indenture, except that, for purpose of this Supplemental
Indenture, all references in such Section 11.02 to electronic or e-mail transmission or delivery shall be deemed to include Electronic
Signatures. For purposes hereof, “Electronic Signatures” shall mean any digital signature provided by DocuSign (or
such other digital signature provider as specified in writing to the Trustee by an Officer of the Company). The Company agrees to assume
all risks arising out of the use of using digital signatures and electronic methods to submit communications 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.
Section 10.06. Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10.07. Waiver
of Jury Trial. EACH OF THE COMPANY 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 SUPPLEMENTAL INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.08. Trustee
Disclaimer. The Trustee shall have no responsibility for the validity or sufficiency of this Supplemental Indenture.
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left blank]
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IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the day and year first written above.
EQUINIX, INC.,
as Issuer
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
[Equinix Twenty-First Supplemental Indenture]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
/s/ Lauren Costales
Name:
Lauren Costales
Title:
Vice President
[Equinix Twenty-First Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
5.000% Senior Notes due 2029
[Insert the Global Security Legend, if applicable,
pursuant to the provisions of the Indenture]
A-1
[Face of Note]
CUSIP 29444U
BV7
5.000% Senior Notes due 2029
No. ________
$__________
Equinix, Inc.
promises to pay to Cede & Co. or registered assigns,
the principal sum of ________________________ DOLLARS on August 15,
2029.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2027
Record Dates: February 1 and August 1
Dated: ______, 20__
Equinix, Inc.
By:
Name:
Title:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association,
Trustee, certifies
that this is one of the Notes referred
to in the
Supplemental Indenture.
By:
Authorized Signatory
A-2
[Back of Note]
5.000% Senior Notes due 2029
Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Equinix, Inc.,
a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 5.000% per
annum from August 6, 2026, until maturity. The Company will pay interest semi-annually in arrears on February 15 and August 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 February 15, 2027. 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 equal to the interest 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 daily 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 of Notes at the close of
business on the February 1 or August 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 2.14
of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at
the office or agency of the Company maintained for such purpose within or without the United States, or, at the option of the Company,
payment of interest 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 and interest, premium 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.
(3) PAYING AGENT AND REGISTRAR. Initially,
U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in the capacity of Paying Agent or Registrar.
(4) INDENTURE. The Company issued
the Notes under an Indenture, dated as of December 12, 2017 (the “Base Indenture” and, as supplemented by the
Supplemental Indenture (as defined below), the “Indenture”), by and between the Company and the Trustee, as supplemented
by that certain Twenty-First Supplemental Indenture, dated as of August 6, 2026, by and between the Company and the Trustee (the
“Supplemental Indenture”). The terms of this Note include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for
a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company.
(5) OPTIONAL REDEMPTION.
(a) Prior
to July 15, 2029 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part,
at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal
places) equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the Redemption Date (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date
of redemption (the “Redemption Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding the Redemption Date.
A-3
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Article 3 of the Supplemental Indenture.
(d) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(6) NOTICE OF REDEMPTION. Notice of
redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to
be redeemed at its registered address and the Trustee, except that redemption notices with respect to any redemption pursuant to Section 3.02
of the Supplemental Indenture may be delivered 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. Notes in denominations larger than $2,000 may be redeemed
in part in connection with any redemption pursuant to Section 3.02, but only in whole multiples of $1,000 unless all of the Notes
held by a Holder are to be redeemed and provided that any unredeemed portion of a Note is equal to $2,000 or a multiple of $1,000
in excess thereof. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease
to accrue on the Notes or portions thereof called for redemption.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) In
the event that the Company or a Restricted Subsidiary is required to commence an offer to all Holders to purchase Notes pursuant to Section 4.05
of the Supplemental Indenture, it will comply with the terms set forth in the Supplemental Indenture, including Section 3.04 thereof.
(b) If
a Change of Control Triggering Event occurs, unless the Company or a third party has previously or concurrently delivered a redemption
notice with respect to all outstanding notes, as described under Section 3.02 of the Supplemental Indenture, the Company will be
required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part of such Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest,
if any, on the Notes repurchased to but not including the date of repurchase, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control Triggering Event,
the Company will deliver a notice to each Holder, with a copy to the Trustee, setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(8) DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons 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 to be
redeemed in part that is equal to $2,000 or a multiple of $1,000 in excess thereof. Also, the Company need not issue, register the transfer
of or exchange 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.
(9) PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.
A-4
(10) AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental
Indenture) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer
for purchase of, the Notes), and any existing Default or Event or Default, other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes (except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture and the Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental Indenture) voting as
a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for purchase of,
the Notes). Without the consent of any Holder of Notes, the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency; provide for the assumption by a Surviving Entity of the obligations of the Company under the Indenture; provide
for uncertificated Notes in addition to or in place of certificated Notes; secure the Notes, add to the covenants of the Company for
the benefit of the holders of the Notes or surrender any right or power conferred upon the Company; make any change that does not adversely
affect the rights of any holder of the Notes; comply with any requirement of the Commission in connection with the qualification of the
Indenture under the TIA; provide for the issuance of Additional Notes in accordance with the Supplemental Indenture; evidence and provide
for the acceptance of appointment by a successor Trustee; conform the text of the Indenture or the Notes to any provision of the “Description
of the 2029, 2033 and 2036 Notes” of the Prospectus to the extent that such provision in the “Description of the 2029, 2033
and 2036 Notes” of the Prospectus was intended to be a recitation of a provision of the Indenture or the Notes; or make any amendment
to the provisions of the Indenture relating to the transfer and legending of the Notes as permitted by the Indenture, including, without
limitation to facilitate the issuance and administration of the Notes; provided that (i) compliance with the Indenture as
so amended would not result in the Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such
amendment does not materially and adversely affect the rights of Holders to transfer the Notes.
(11) DEFAULTS AND REMEDIES. Events of Default
with respect to the Notes include: (i) failure by the Company to pay interest on any Notes when such interest becomes due and payable
and the default continues for a period of 30 days; (ii) failure by the Company to pay the principal on any Notes when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer); (iii) failure by the Company for 60 days after 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
other covenants or agreements in the Indenture (except (i) in the case of a default with respect to Section 5.01 of the Supplemental
Indenture, which will constitute an Event of Default with such notice requirement but without such passage of time requirement and (ii) as
otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture); (iv) the failure to pay at final maturity
(giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company
or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Restricted Subsidiary of notice of any
such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has been so accelerated (in each case with respect to which
the 30-day period described above has passed), equals $500.0 million or more at any time; (v) the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary, pursuant to or within the meaning of Bankruptcy Law, commences a voluntary case, consents to the entry of an order
for relief against it in an involuntary case, consents to the appointment of a custodian for it or for all or substantially all of its
property, makes a general assignment for the benefit of its creditors, or an admission by the Company in writing of its inability to
pay its debts as they become due; or (vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
is for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case; appoints a custodian of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary or orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Material Subsidiary and the order or decree
remains unstayed and in effect for 60 consecutive days.
A-5
If any Event of Default with respect to outstanding
Notes occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare the principal of, and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration” and the same shall be
immediately due and payable.
Notwithstanding the foregoing, in the case of
an Event of Default arising from the events of bankruptcy or insolvency specified in clauses (v) or (vi) in the second preceding
paragraph above occurring with respect to the Company, all unpaid principal of and accrued and unpaid interest on all of the outstanding
Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or premium,
if any) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the 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. The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, within five Business Days of any Officer becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
(12) TRUSTEE DEALINGS WITH THE COMPANY.
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.
(13) NO RECOURSE AGAINST OTHERS. No past,
present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or under the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liabilities. The waiver
and release are part of the consideration for the issuance of the Notes.
(14) AUTHENTICATION. This Note will not
be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(15) 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).
(16) 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.
(17) GOVERNING LAW. THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE 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.
A-6
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Equinix, Inc.
One Lagoon Drive
Redwood City, CA 94065
United States of America
Attention: Chief Financial Officer
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-7
OPTION OF HOLDER TO ELECT
PURCHASE
If you want to elect to have this Note purchased
by the Company pursuant to Section 4.05 (Change of Control Offer) of the Supplemental Indenture, check the box below:
¨
Section 4.05
If you want to elect to have only part of the
Note purchased by the Company pursuant to Section 4.05 of the Supplemental 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-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note
for an interest in this Global Note, have been made:
Date
of Exchange
Amount
of
decrease
in Principal
Amount of this
Global Note
Amount
of
increase
in Principal
Amount of this
Global Note
Principal
Amount of
this Global Note
following such
decrease
(or increase)
Signature
of
authorized officer
of
Trustee or
Custodian
*
This schedule should be included only if the Note
is issued in global form.
A-9
EX-4.4 — EXHIBIT 4.4
EX-4.4
Filename: tm2622384d1_ex4-4.htm · Sequence: 5
Exhibit 4.4
EQUINIX, INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee,
5.500% Senior Notes due 2033
Twenty-Second Supplemental Indenture
Dated as of August 6, 2026
to
Indenture dated as of December 12, 2017
TABLE
OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions
1
Section 1.02.
Conflicts with Base Indenture
15
ARTICLE 2
THE
NOTES
Section 2.01.
Amount; Series; Terms
15
Section 2.02.
Denominations
15
Section 2.03.
Form of Notes
15
ARTICLE 3
REDEMPTION
AND PREPAYMENT
Section 3.01.
Redemption
16
Section 3.02.
Optional Redemption of the Notes
16
Section 3.03.
[Reserved]
16
Section 3.04.
Repurchase Offer
16
ARTICLE 4
COVENANTS
Section 4.01.
Payment of Notes
18
Section 4.02.
Reports to Holders
18
Section 4.03.
Sale and Leaseback Transactions
18
Section 4.04.
Limitation on Liens
19
Section 4.05.
Offer to Repurchase Upon Change of Control Triggering
Event
19
ARTICLE 5
MERGER,
CONSOLIDATION, OR SALE OF ASSETS
Section 5.01.
Merger, Consolidation, or Sale of Assets
20
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01.
Events of Default
21
Section 6.02.
Other Amendments
23
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT
DEFEASANCE
Section 7.01.
Legal Defeasance and Covenant Defeasance
23
ARTICLE 8
SATISFACTION AND DISCHARGE
-i-
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Amendment, Supplement and Waiver
23
ARTICLE 10
MISCELLANEOUS
Section 10.01.
Sinking Funds
24
Section 10.02.
Supplemental Indenture
24
Section 10.03.
No Guarantees
24
Section 10.04.
Confirmation of Indenture
24
Section 10.05.
Counterpart; Notices
24
Section 10.06.
Governing Law
24
Section 10.07.
Waiver of Jury Trial
24
Section 10.08.
Trustee Disclaimer
24
Exhibit A
Form of Note
A-1
-ii-
TWENTY-SECOND SUPPLEMENTAL INDENTURE, dated as
of August 6, 2026 (this “Supplemental Indenture”), to the Indenture dated as of December 12, 2017 (as amended,
modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities,
the “Base Indenture” and, as amended, modified and supplemented by this Supplemental Indenture, the “Indenture”),
by and between Equinix, Inc. (the “Company,” as more fully set forth in Section 1.01), and U.S. Bank Trust
Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Notes (as defined herein):
WHEREAS, the Company has duly authorized the execution
and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to be issued in one or more
series as provided in the Base Indenture;
WHEREAS, the Company has duly authorized the execution
and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Supplemental Indenture in order
to establish and provide for the issuance by the Company of a series of Notes designated as its 5.500% Senior Notes due 2033 (the “Initial
Notes”) in an aggregate principal amount of $650,000,000, on the terms set forth herein;
WHEREAS, Article 9 of the Base Indenture
provides that a supplemental indenture may be entered into by the parties for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base
Indenture for the execution and delivery of this Supplemental Indenture have been met; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture
with respect to the Notes have been done;
NOW, THEREFORE:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
In addition to the definitions set forth in Article 1
of the Base Indenture, this Supplemental Indenture shall include the following definitions, which, in the event of a conflict with the
definition of terms in the Base Indenture, shall control:
“Additional Notes” has the
meaning set forth in Section 2.01(b).
“Acquired Indebtedness” means
Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or
at the time it merges or consolidates with or into the Company or any of its Subsidiaries or that is assumed in connection with the acquisition
of assets from such Person, in each case whether or not incurred by such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation.
“Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the
Depositary to the extent applicable to such transfer or exchange.
“ASC” means FASB Accounting Standards
Codification.
“Asset Acquisition” means (1) an
investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets
of any Person (other than a Restricted Subsidiary of the Company) that constitute all or substantially all of the assets of such Person
or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary
course of business.
“Attributable Debt” means,
in respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback
Transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback
Transaction.
“Base Indenture” has the meaning
specified in the introductory paragraph of this Supplemental Indenture.
“Cash Equivalents” means:
(a) debt
securities denominated in Euro, pounds sterling or U.S. dollars to be issued or directly and fully guaranteed or insured by the government
of a Participating Member State, the U.K. or the U.S., as applicable, where the debt securities have not more than twelve months to final
maturity and are not convertible into any other form of security;
(b) commercial
paper denominated in Euro, pounds sterling or U.S. dollars maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least P1 from Moody’s and A1 from S&P;
(c) certificates
of deposit denominated in Euro, pounds sterling or U.S. dollars having not more than twelve months to maturity issued by a bank or financial
institution incorporated or having a branch in a Participating Member State in the United Kingdom or the United States, provided
that the bank is rated P1 by Moody’s or A1 by S&P;
(d) any
cash deposit denominated in Euro, pounds sterling or U.S. dollars with any commercial bank or other financial institution, in each case
whose long term unsecured, unsubordinated debt rating is at least A3 by Moody’s or A- by S&P;
(e) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered
into with any bank or financial institution meeting the qualifications specified in clause (d) above; and
(f) investments
in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.
“Change of Control” means the
occurrence of one or more of the following events:
(1) any
sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets
of the Company to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of the Indenture);
(2) the
approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the provisions of the Indenture); or
(3) any
Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company.
-2-
For the avoidance of doubt, the consummation of
the Company Conversion shall not constitute a “Change of Control.”
“Change of Control Offer” has
the meaning set forth in Section 4.05(a).
“Change of Control Payment”
has the meaning set forth in Section 4.05(a).
“Change of Control Payment Date”
has the meaning set forth in Section 4.05(b).
“Change of Control Triggering Event”
means, in each case, the occurrence of both (i) a Change of Control and (ii) a Rating Event.
“Company” has the meaning specified
in the introductory paragraph of this Supplemental Indenture, and subject to the provisions of ARTICLE 5, shall include its successors
and assigns.
“Company Conversion” means
the actions taken by the Company and its Subsidiaries in connection with Company’s qualification as a REIT, including without limitation,
(y) separating from time to time all or a portion of its United States and international businesses into, as defined by the Code,
taxable REIT subsidiaries (“TRS”) and/or qualified REIT subsidiaries (“QRS”) (it being understood
that any such TRS and/or QRS shall remain Restricted Subsidiaries, as applicable, as prior to the Company Conversion) and (z) amending
its charter to impose ownership limitations on the Company’s Capital Stock directly or indirectly by merging into a Wholly Owned
Restricted Subsidiary of the Company.
“Consolidated Depreciation, Amortization
and Accretion Expense” means with respect to any Person for any period, the total amount of depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period)
and accretion expense, including the amortization of deferred financing fees or costs of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means,
with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased
(without duplication) by the following, in each case to the extent deducted in determining Consolidated Net Income for such period:
(1) provision
for taxes based on income or profits or capital, including, without limitation, federal, state, franchise and similar taxes and foreign
withholding taxes (including any levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed
by a governmental agency, and any related interest, penalty, charge, fee or other amount) of such Person paid or accrued during such
period deducted (and not added back) in computing Consolidated Net Income; plus
(2) Consolidated
Interest Expense of such Person for such period to the extent the same were deducted (and not added back) in calculating such Consolidated
Net Income; plus
(3) Consolidated
Depreciation, Amortization and Accretion Expense of such Person for such period to the extent that the same were deducted (and not added
back) in computing Consolidated Net Income; plus
(4) any
expenses or charges (other than depreciation or amortization expense) related to any Equity Offering or the incurrence of Indebtedness
permitted to be incurred in accordance with the Indenture (including a refinancing thereof) (whether or not successful), in each case,
deducted (and not added back) in computing Consolidated Net Income; plus
(5) any
other Non-cash Charges, including any provisions, provision increases, write-offs or write-downs reducing Consolidated Net Income for
such period (provided that if any such Non-cash Charges represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent), and excluding
amortization of a prepaid cash item that was paid in a prior period; plus
-3-
(6) any
costs or expenses incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement or any stock subscription or stockholder agreement, to the extent that such cost
or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest
of the Company (other than Disqualified Capital Stock); plus
(7) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net
Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant
to clause (b) below for any previous period and not added back; plus
(8) any
net loss from disposed or discontinued operations; plus
(9) any
net unrealized loss (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized loss on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
(10) any
net unrealized loss (after any offset) resulting in such period from (A) currency translation or exchange losses including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates; plus
(11) the
amount of any minority interest expense (less the amount of any cash dividends paid in such period to holders of such minority interests);
plus
(12) the
amount of any costs and expenses associated with the Company Conversion, including, without limitation, planning and advisory costs related
to the foregoing; and
(b) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(1) non-cash
gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the
reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains
with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period;
(2) any
net gain from disposed or discontinued operations;
(3) any
net unrealized gain (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized gain on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
-4-
(4) any
net unrealized gains (after any offset) resulting in such period from (A) currency translation or exchange gains including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates.
For purposes of this definition, calculations
shall be done after giving effect on a pro forma basis for the period of such calculation to:
(1) the
incurrence or repayment of any Indebtedness or the designation or elimination (including by de-designation) of any Designated Revolving
Commitments of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need
to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment of Indebtedness or designation or elimination (including by de-designation)
of Designated Revolving Commitments, as the case may be (and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period (and in the case of Designated Revolving Commitments, as if Indebtedness in the full amount of any undrawn Designated
Revolving Commitments had been incurred throughout such period); and
(2) any
asset sales or other dispositions or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated
under the Exchange Act) attributable to the assets which are the subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any
of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect
to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness.
“Consolidated Interest Expense”
means, with respect to any Person for any period, the sum of, without duplication:
(1) the
aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any amortization of debt discount and the amortization or write-off of deferred
financing costs, including commitment fees; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest;
(d) non-cash interest expense (other than non-cash interest on any convertible or exchangeable debt issued by the Company that exists
by virtue of the bifurcation of the debt and equity components of such convertible or exchangeable notes and the application of ASC 470-20
(or related accounting pronouncement(s))); (e) commissions, discounts and other fees and charges owed with respect to letters of
credit and banker’s acceptance financing; (f) dividends with respect to Disqualified Capital Stock; (g) dividends with
respect to Preferred Stock of Restricted Subsidiaries of such Person; (h) imputed interest with respect to Sale and Leaseback Transactions;
and (i) the interest portion of any deferred payment obligation; plus
(2) the
interest component of Finance Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP; less
-5-
(3) interest
income for such period.
“Consolidated Net Income” means,
with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication):
(1) any
after tax effect of extraordinary, non-recurring or unusual gains or losses (including all fees and expenses relating thereto) or expenses;
(2) any
net after tax gains or losses on disposal of disposed, abandoned or discontinued operations;
(3) any
after tax effect of gains or losses (including all fees and expenses relating thereto) attributable to sale, transfer, license, lease
or other disposition of assets or abandonments or the sale, transfer or other disposition of any Equity Interest of any Person other
than in the normal course of business;
(4) the
net income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the
equity method of accounting, except to the extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary
of the Company by such Person;
(5) any
after tax effect of income (loss) from the early extinguishment of (1) Indebtedness, (2) obligations under any Currency Agreement
or (3) other derivative instruments;
(6) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant
to GAAP, and the amortization of intangibles arising pursuant to GAAP;
(7) any
non-cash compensation charge or expense including any such charge arising from the grants of stock appreciation or similar rights, stock
options, restricted stock or other rights;
(8) any
fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any issuance or repayment
of Indebtedness, issuance of Equity Interests, refinancing transaction, amendment or modification of any debt instrument;
(9) income
or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued);
(10) in
the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any
earnings of the successor entity prior to such consolidation, merger or transfer of assets;
(11) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by contract, operation of law or otherwise; and
(12) acquisition-related
costs resulting from the application of ASC 805.
In addition, to the extent not already included
in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
but without duplication, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any
sale, conveyance, transfer or other disposition of assets permitted under the Indenture (in each case, whether or not non-recurring).
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“Currency Agreement” means
any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.08 of the Base Indenture, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global Security Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“delivered” with respect to
any notice to be delivered, given or mailed to a Holder pursuant to the Indenture, shall mean (x) notice given to the Depositary
(or its designee) in accordance with accepted procedures of the Depositary (in the case of a Global Note) or (y) notice mailed to
such Holder by first class mail, postage prepaid, at its address as it appears on the register of Holders. Notice so “delivered”
shall be deemed to include any notice to be “mailed” or “given,” as applicable, under the Indenture.
“Designated Revolving Commitments”
means the amount or amounts of any commitments to make loans or extend credit on a revolving basis to the Company or any of its Restricted
Subsidiaries by any Person other than the Company or any of its Restricted Subsidiaries that has or have been designated (but only to
the extent so designated) in an Officers’ Certificate delivered to the Trustee as “Designated Revolving Commitments”
until such time as the Company subsequently delivers an Officers’ Certificate to the Trustee to the effect that the amount or amounts
of such commitments shall no longer constitute “Designated Revolving Commitments.”
“Disqualified Capital Stock”
means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute
a Change of Control), matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control), in each case, on or prior to the
final maturity date of the Notes.
“Domestic Restricted Subsidiary”
means a Restricted Subsidiary incorporated or otherwise organized under the laws of the United States, any State thereof or the District
of Columbia.
“Electronic Signatures” has
the meaning set forth in Section 10.05.
“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 any
public or private sale of Common Stock or Preferred Stock of the Company (excluding Disqualified Capital Stock), other than:
(a) public
offerings with respect to the Company’s or any direct or indirect parent company’s common stock registered on Form S-4
or Form S-8 (or similar forms under non-U.S. law);
(b) issuances
to any Subsidiary of the Company;
(c) issuances
pursuant to the exercise of options or warrants outstanding on the date hereof;
(d) issuances
upon conversion of securities convertible into Common Stock outstanding on the date hereof;
(e) issuances
in connection with an acquisition of property in a transaction entered into on an arm’s-length basis; and
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(f) issuances
pursuant to employee stock plans.
“Euro” means the lawful currency
of the member states of the European Union who have agreed to share a common currency in accordance with the provisions of the Maastricht
Treaty dealing with European monetary union.
“Event of Default” has the
meaning set forth in Section 6.01.
“fair market value” means,
with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
Fair market value shall be determined by the Board of Directors of the Company or any duly appointed officer of the Company or a Restricted
Subsidiary, as applicable, acting reasonably and in good faith and, in respect of any asset or property with a fair market value in excess
of $100.0 million, shall be determined by the Board of Directors of the Company and shall be evidenced by a Board Resolution of the Board
of Directors of the Company delivered to the Trustee.
“Finance Lease Obligations”
means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as finance
lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
“Fitch” means Fitch Ratings
Inc. or any successor to the rating agency business thereof.
“Four Quarter Period” means
the period of four full fiscal quarters for which financial statements are available ending prior to the date of the transaction (the
“Transaction Date”) giving rise to the need to make such calculation.
“GAAP” means generally accepted
accounting principles set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect
as of July 11, 2011.
“Global Notes” means, individually
and collectively, each of the Global Securities 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 Security Legend and that has the “Schedule
of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.03 of the Base Indenture
and Section 2.03 hereof.
“Holder” means a Person in
whose name a Note is registered.
“incur” means, collectively,
create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible
for payment of (collectively, “incur”) any Indebtedness.
“Indebtedness” means with respect
to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
(2) all
Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all
Finance Lease Obligations and all Attributable Debt of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations
under any title retention agreement (but excluding (i) trade accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 120 days or more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet
of such Person in accordance with GAAP);
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(5) all
Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other
than obligations with respect to letters of credit (A) securing Obligations (other than Obligations described in (1)-(4) above)
entered into the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or (B) that are otherwise cash collateralized;
(6) guarantees
and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
(7) all
Obligations of any other Person of the type referred to in clauses (1) through (6) that are secured by any Lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset
or the amount of the Obligation so secured;
(8) all
Obligations under Currency Agreements and Interest Swap Obligations of such Person;
(9) all
Disqualified Capital Stock issued by such Person or Preferred Stock issued by such Person’s non-Domestic Restricted Subsidiaries
with the amount of Indebtedness represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; and
(10) the
aggregate amount of Designated Revolving Commitments in effect on such date.
For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value
of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors
of the issuer of such Disqualified Capital Stock.
“Indenture” means the Base
Indenture, as supplemented by this Supplemental Indenture, as amended or supplemented from time to time.
“Initial Notes” has the meaning
specified in the recitals of this Supplemental Indenture.
“Interest Swap Obligations”
means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
“Interest Payment Date” has
the meaning set forth in Section 2.01(d).
“Investment Grade Rating” means
a rating equal to or greater than BBB- by S&P and Fitch and Baa3 by Moody’s or the equivalent thereof under any new ratings
system if the ratings system of any such agency shall be modified after the Issue Date, or the equivalent rating of any other Rating
Agency selected by the Company as provided in the definition of “Rating Agency.”
“Issue Date” means August 6,
2026.
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“Material Subsidiary” means
a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act.
“Moody’s” means Moody’s
Investors Service, Inc., or any successor to the rating agency business thereof.
“Non-cash Charges” means, with
respect to any Person, (a) losses on asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related
to intangible assets, long-lived assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from investments
recorded using the equity method, (d) stock-based awards compensation expense, and (e) other non-cash charges (provided
that if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period).
“Notes” means, for all purposes
under the Indenture (including, without limitation, the covenants set forth in the Base Indenture) the Initial Notes issued on the date
hereof and any Additional Notes. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under
the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional
Notes.
“Obligations” means all obligations
for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“Offer Amount” has the meaning
set forth in Section 3.04.
“Offer Period” has the meaning
set forth in Section 3.04.
“Officers’ Certificate”
means a certificate signed by two Officers, at least one of whom shall be the principal executive officer or principal financial officer
of the Company, and delivered to the Trustee.
“Par Call Date” means June 15, 2033.
“Pari Passu Indebtedness” means
any Indebtedness of the Company that ranks pari passu in right of payment with the Notes.
“Participating Member State”
means each state, so described in any European Monetary Union legislation, which was a participating member state on December 31,
2003.
“Permitted Liens” means the
following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with
past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;
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(5) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material
respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(6) any
interest or title of a lessor under any Finance Lease Obligation; provided that such Liens do not extend to any property or assets
which is not leased property subject to such Finance Lease Obligation (other than other property that is subject to a separate lease
from such lessor or any of its Affiliates);
(7) Liens
securing Purchase Money Indebtedness incurred in the ordinary course of business; provided that (a) such Purchase Money Indebtedness
shall not exceed the purchase price or other cost of such property or equipment and shall not be secured by any property or equipment
of the Company or any Restricted Subsidiary of the Company other than the property and equipment so acquired or other property that was
acquired from such seller or any of its Affiliates with the proceeds of Purchase Money Indebtedness and (b) the Lien securing such
Purchase Money Indebtedness shall be created within 360 days of such acquisition;
(8) 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;
(9) 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;
(10) Liens
securing Interest Swap Obligations;
(11) Liens
securing Indebtedness under Currency Agreements;
(12) Liens
securing Acquired Indebtedness; provided that
(a) such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company; and
(b) such
Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(13) Liens
on assets of a Restricted Subsidiary of the Company;
(14) leases,
subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(15) banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;
(16) Liens
arising from filing Uniform Commercial Code financing statements regarding leases;
-11-
(17) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation
of goods;
(18) Liens
(a) on inventory held by and granted to a local distribution company in the ordinary course of business and (b) in accounts
purchased and collected by and granted to a local distribution company that has agreed to make payments to the Company or any of its
Restricted Subsidiaries for such amounts in the ordinary course of business;
(19) [Reserved];
(20) Liens
securing Indebtedness in respect of Sale and Leaseback Transactions;
(21) [Reserved];
(22) Liens
securing Indebtedness in respect of mortgage financings; and
(23) Liens
with respect to obligations (including Indebtedness) of the Company or any of its Restricted Subsidiaries otherwise permitted under the
Indenture that do not exceed an amount equal to (x) 3.5 times (y) the Consolidated EBITDA of the Company for the Four
Quarter Period to and including the most recent fiscal quarter for which financial statements are internally available immediately preceding
such date.
“Prospectus” means the prospectus
dated February 13, 2026, as supplemented by the prospectus supplement dated July 30, 2026, prepared by the Company in connection
with the offering of the Initial Notes.
“Purchase Date” has the meaning
set forth in Section 3.04.
“Purchase Money Indebtedness”
means Indebtedness of the Company and its Restricted Subsidiaries incurred in the normal course of business for the purpose of financing
all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment.
“Rating Agency” means (1) each
of Fitch, Moody’s and S&P and (2) if Fitch, Moody’s or S&P ceases to rate the Notes for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62)
of the Exchange Act selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“Rating Event” means that the
Notes are downgraded by at least one rating category from the applicable rating of such Notes on the first day of the Trigger Period
by two of the Rating Agencies and/or cease to be rated by two of the Rating Agencies, in each case, on any date during the Trigger Period;
provided that a Rating Event will not be deemed to have occurred unless the rating category of the Notes is below an Investment
Grade Rating by two of the Rating Agencies; provided, further, that a Rating Event will not be deemed to have occurred
in respect of a particular Change of Control if each applicable downgrading Rating Agency does not publicly announce or confirm or inform
the Trustee in writing at the Company’s request that the reduction was the result of the Change of Control (whether or not the
applicable Change of Control has occurred at the time of the Change of Control Triggering Event). Notwithstanding the foregoing, no Rating
Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has
actually been consummated; provided that in the event that a Rating Agency does not provide a rating of Notes on the first day
of the Trigger Period, such absence of rating shall be treated as both a downgrade in the rating of such Notes below an Investment Grade
Rating by such Rating Agency and a downgrade that results in such Notes no longer being rated at the rating category in effect on the
first day of the Trigger Period by such Rating Agency, in each case, and shall not be subject to the second proviso in the immediately
preceding sentence. The Trustee shall have no obligation to determine whether a Rating Event has occurred.
“Redemption Date” has the meaning
set forth in Section 3.02(a).
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“REIT” means a “real
estate investment trust” as defined and taxed under Sections 856-860 of the Code.
“Repurchase Offer” has the
meaning set forth in Section 3.04.
“Restricted Subsidiary” of
any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.
“S&P” means Standard &
Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.
“Sale and Leaseback Transaction”
means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company
or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired,
which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from
whom funds have been or are to be advanced by such Person on the security of such property.
“Subordinated Indebtedness”
means Indebtedness of the Company that is subordinated or junior in right of payment to the Notes.
“Supplemental Indenture” has
the meaning specified in the introductory paragraph of this Supplemental Indenture.
“Tax” or “Taxes”
means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings (including backup withholdings), fees
and any charges of a similar nature (including interest, fines, penalties and other liabilities with respect thereto) that are imposed
by any government or other taxing authority.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
“Transaction Date” has the
meaning assigned thereto in the definition of “Four Quarter Period.”
“Treasury Rate”
means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the Redemption Date to the Par Call Date (the “Remaining Life”);
or
(2) if there is no such Treasury constant maturity on H.15 exactly equal
to the Remaining Life, the two yields – one yield corresponding to the Treasury constant
maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life – and shall interpolate
to the Par Call Date on a straight-line basis (using the actual number of days) using such
yields and rounding the result to three decimal places; or
(3) if there is no such Treasury constant maturity on H.15 shorter than
or longer than the Remaining Life, the yield for the single Treasury constant maturity on
H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury
constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to
the relevant number of months or years, as applicable, of such Treasury constant maturity
from the Redemption Date.
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If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual
yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed
as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three
decimal places.
“Trigger Period” means the
60-day period commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control (which Trigger Period will be
extended so long as the ratings of the Notes are under publicly announced consideration for possible downgrade by any two of the three
Rating Agencies); provided that the Trigger Period will terminate with respect to each Rating Agency when such Rating Agency takes action
(including affirming its existing ratings) with respect to such Change of Control.
“Trustee” has the meaning specified
in the introductory paragraph of this Supplemental Indenture.
“Unrestricted Subsidiary” of
any Person means:
(1) any
Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board
of Directors of such Person in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided that each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any
of its Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if, immediately before and immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.
“Wholly Owned Restricted Subsidiary”
means a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company
or another Wholly Owned Restricted Subsidiary.
Whenever this Supplemental Indenture refers to
a provision of the TIA, the provision is incorporated by reference in and made a part of this Supplemental Indenture.
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All terms used in this Supplemental Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings
so assigned to them.
Section 1.02. Conflicts
with Base Indenture. In the event that any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision
of the Base Indenture, such provision of this Supplemental Indenture shall control.
ARTICLE 2
THE NOTES
Section 2.01. Amount;
Series; Terms.
(a) There
is hereby created and designated one series of Notes under the Base Indenture: the title of the Notes shall be “5.500% Senior Notes Due 2033.” The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Notes that may be issued under the
Base Indenture unless a supplemental indenture with respect to such other series of Notes specifically incorporates such changes, modifications
and supplements.
(b) The
initial aggregate principal amount of Notes is $650,000,000. The Company shall be entitled to issue additional notes under this Supplemental
Indenture (“Additional Notes”) 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; provided that
such issuance is not prohibited by the terms of the Indenture. Any such Additional Notes shall be consolidated and form a single series
with the Initial Notes initially issued including for purposes of voting and redemption; provided that if such Additional Notes
are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall have one or more separate CUSIP
numbers. With respect to any Additional Notes, the Company shall set forth in a Board Resolution of its Board of Directors and in an
Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information: (i) the aggregate
principal amount of such Additional Notes to be authenticated and delivered pursuant to this Supplemental Indenture; and (ii) 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.
(c) The
Stated Maturity of the Notes shall be August 15, 2033. The Notes shall be payable and may
be presented for payment, purchase, redemption, registration of transfer and exchange, without service charge, at the office of the Company
maintained for such purpose in the United States, which shall initially be the office or agency of the Trustee in the United States.
(d) The
Notes shall bear interest at the rate of 5.500% per annum from August 6, 2026, or from the most recent date to which interest has
been paid or duly provided for, as further provided in the forms of Global Note annexed hereto as Exhibit A. Interest shall
be computed on the basis of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be payable (each,
an “Interest Payment Date”) shall be February 15 and August 15 of each year, beginning on February 15,
2027, and the record date for any interest payable on each such Interest Payment Date shall be the immediately preceding February 1
or August 1, respectively.
(e) The
Notes will be issued in the form of one or more Global Notes, deposited with the Trustee as custodian for the Depositary or its nominee,
duly executed by the Company and authenticated by the Trustee as provided in Sections 2.03 and 2.04 of the Base Indenture.
Section 2.02. Denominations.
The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 and any multiple of $1,000
in excess thereof.
Section 2.03. Form of
Notes. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto.
However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Redemption.
Pursuant to Section 3.01 of the Base Indenture, the following additional redemption provisions in this Article 3 shall apply
to the Notes.
Section 3.02. Optional
Redemption of the Notes.
(a) Prior
to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption
price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (as
defined below) (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date of redemption (the “Redemption
Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed, plus, in either case, accrued and
unpaid interest thereon, if any, to but excluding the Redemption Date (the “Make-Whole Premium”).
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Neither
the Trustee nor any Paying Agent shall have any obligation to calculate or verify the calculation of the Make-Whole Premium.
(d) The
provisions of Section 3.01 through Section 3.06 of the Base Indenture shall not apply to the Notes, and the following
provisions shall apply in lieu thereof:
(i) In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair.
(ii) No
Notes of a principal amount of $2,000 or less shall be redeemed in part.
(iii) Notice
of redemption will be delivered at least 10 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed,
the Trustee and the Paying Agent; provided that, if the redemption notice is issued in connection with a defeasance of the Notes
or satisfaction and discharge of the Indenture governing the Note in accordance with the Indenture, the notice of redemption may be delivered
more than 60 calendar days before the date of redemption. If any Note is to be redeemed in part only, then the notice of redemption that
relates to such Note must state the portion of the principal amount of such Note to be redeemed. A new Note in a principal amount equal
to the unredeemed portion of such Note will be issued in the name of the Holder of such Note upon cancellation of the original Note.
Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the
Notes or portions thereof called for redemption.
(e) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(f) For
so long as the Notes are held by the Depositary (or another depositary), any redemption of the Notes shall be done in accordance with
the Applicable Procedures.
Section 3.03. [Reserved].
Section 3.04. Repurchase
Offer. In the event that, pursuant to Section 4.05 hereof, the Company or a Restricted Subsidiary is required to commence an
offer to all Holders to purchase Notes (a “Repurchase Offer”), it shall follow the procedures specified below.
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The Repurchase Offer shall remain open for a period
of at least 20 Business Days following its commencement, except to the extent that a shorter or longer period is permitted or required,
as the case may be, by applicable law (the “Offer Period”). No later than five Business Days after the termination
of the Offer Period (the “Purchase Date”), the Company will purchase at the purchase price (as determined in accordance
with Section 4.05 hereof, as the case may be) the principal amount of Notes required to be purchased pursuant to Section 4.05
hereof, as the case may be (the “Offer Amount”) and, if required, Pari Passu Indebtedness (on a pro rata basis, if
applicable), or, if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered in response to the Repurchase
Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
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, to, but not including, the Purchase
Date 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 Repurchase Offer.
Upon the commencement of a Repurchase Offer, the
Company will deliver or cause to be delivered a notice to each of the Holders, with a copy to the Trustee. The notice will contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Repurchase Offer. The notice, which will
govern the terms of the Repurchase Offer, will state:
(a) that
the Repurchase Offer is being made pursuant to this Section 3.04, and Section 4.05 hereof, and the length of time the Repurchase
Offer will remain open;
(b) the
Offer Amount, the purchase price and the Purchase Date;
(c) that
any Note not tendered or accepted for payment will continue to accrue interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue
interest after the Purchase Date;
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in minimum denominations of
$2,000, or integral multiples of $1,000 in excess thereof;
(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” attached to the Note 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;
(g) 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 telegram, telex, facsimile transmission or letter 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;
(h) that,
if the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee
will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by the Trustee so that no Notes in denominations of $2,000 or less will be purchased
in part); and
(i) 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).
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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
validly tendered pursuant to the Repurchase 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 3.04. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date)
deliver 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 deliver (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. Notwithstanding any other provision in the Indenture to the contrary, neither an Opinion of Counsel nor an Officers’
Certificate is required for the Trustee to authenticate such new Note. Any Note not so accepted shall be promptly returned by the Company
to the Holder thereof. The Company will publicly announce the results of the Repurchase Offer on or as soon as practicable after the
Purchase Date.
Other than as specifically provided in this Section 3.04
or Section 4.05 of this Supplemental Indenture, as applicable, any purchase pursuant to this Section 3.04 shall be made pursuant
to the applicable provisions of Section 3.01 through Section 3.06 of the Base Indenture.
ARTICLE 4
COVENANTS
In addition to the covenants set forth in Article 4
of the Base Indenture, the Notes shall be subject to the following additional covenants. Such additional covenants set forth in Sections
4.03 through Section 4.05 below shall be subject to covenant defeasance pursuant to Section 8.03 of the Base Indenture.
Section 4.01. Payment
of Notes. The following paragraph shall be added following the first paragraph of Section 4.01 of the Base Indenture: “The
Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, at the rate equal to 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 such rate to the extent lawful. Interest will be computed daily on the Notes on the basis of a 360-day year comprised of twelve 30-day
months (US 30/360)”.
Section 4.02. Reports
to Holders. The following sentence shall be added to the end of the second paragraph of Section 4.03 of the Base Indenture:
“If the Company had any Unrestricted Subsidiaries during the relevant period, the Company will also provide to the Trustee and,
upon request, to any Holder of the Notes, information sufficient to ascertain the financial condition and results of operations of the
Company and its Restricted Subsidiaries, excluding in all respects the Unrestricted Subsidiaries.”
Section 4.03. Sale
and Leaseback Transactions. The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any property or assets unless:
(1) the
Sale and Leaseback Transaction is solely with the Company or a Restricted Subsidiary;
(2) the
lease is for a period not in excess of 36 months (or which may be terminated by the Company or any of its Subsidiaries within a period
of not more than 36 months);
(3) the
Company would be able to incur Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction without equally and
ratably securing the Notes pursuant to Section 4.04(b) (other than in reliance on clause (20) of the definition of “Permitted
Liens”); or
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(4) the
Company or such Restricted Subsidiary within 365 days after the sale of such property in connection with such Sale and Leaseback Transaction
is completed, applies an amount equal to the net proceeds of the sale of such property to (i) the redemption of Notes, other Indebtedness
of the Company ranking on a parity with the Notes in right of payment or Indebtedness of the Company or a Restricted Subsidiary or (ii) the
purchase of other property; provided that, in lieu of applying such amount to the retirement of Pari Passu Indebtedness, the Company
may deliver Notes to the Trustee for cancellation; such Notes to be credited at the cost thereof to the Company.
Section 4.04. Limitation
on Liens. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom unless:
(a) in
the case of Liens securing Subordinated Indebtedness, the Notes are secured by a Lien on such property, assets or proceeds that is senior
in priority to such Liens; and
(b) in
all other cases, the Notes are equally and ratably secured,
except for:
(1) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(2) Liens
securing the Company’s and its Restricted Subsidiaries’ Obligations under any hedge facility permitted under the Indenture
to be entered into by the Company and its Restricted Subsidiaries;
(3) Liens
securing the Notes;
(4) Liens
in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company;
and
(5) Permitted
Liens.
(c) With
respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness,
such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any
Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, whether payable in
cash or in kind, accretion or amortization of original issue discount, imputed interest, the payment of interest in the form of additional
Indebtedness with the same terms or the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class, and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies
or increases in the value of property securing Indebtedness.
Section 4.05. Offer
to Repurchase Upon Change of Control Triggering Event.
(a) Upon
the occurrence of a Change of Control Triggering Event, unless the Company or a third party has previously or concurrently delivered
a redemption notice with respect to all outstanding Notes as described under Section 3.02, the Company will be required to make
an offer to purchase each Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”),
at a purchase price (the “Change of Control Payment”) equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to but not including the date of purchase.
(b) Within
30 days following the date upon which the Change of Control Triggering Event occurred, the Company must send (in the case of Notes represented
by Global Notes, in accordance with the Applicable Procedures), or cause the Trustee to send, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the Purchase
Date, which must be no earlier than 10 days nor later than 60 days after the date such notice is delivered, other than as may be required
by law (the “Change of Control Payment Date”). Holders electing to have a Note purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Note completed and specifying the portion (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s
Notes that it agrees to sell to the Company pursuant to the Change of Control Offer, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
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(c) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.05,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under
the provisions of this Section 4.05 by virtue of such conflict.
(d) On
the date of such Change of Control Payment, 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.
(e) The
Paying Agent will promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount
of $2,000 or an integral multiple of $1,000. The Company will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the date of such Change of Control Payment.
(f) The
Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if 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 the Indenture applicable
to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer. The Company (or a third party) may make a Change of Control Offer in advance of, and conditioned upon, any Change of Control Triggering
Event.
ARTICLE 5
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Notes shall not be subject to Section 5.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 5.01 of this Supplemental
Indenture:
Section 5.01. Merger,
Consolidation, or Sale of Assets.
(a) The
Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a consolidated basis for
the Company and the Company’s Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
(1) either:
(A) the
Company shall be the surviving or continuing corporation; or
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(B) the
Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”):
(i) shall
be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and
(ii) shall
expressly assume, by supplemental indenture (in form satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, interest on all of the Notes and the performance of every covenant of the
Notes and the Indenture on the part of the Company to be performed or observed;
(2) immediately
before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) of this Section 5.01(a),
no Default or Event of Default shall have occurred or be continuing; and
(3) the
Company or the Surviving Entity shall have delivered to the Trustee an 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 the Indenture
and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
(b) For
purposes of the provisions of Section 5.01(a) hereof, the transfer (by lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company,
in a single or a series of related transactions, which properties and assets, if held by the Company instead of such Restricted Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be
the transfer of all or substantially all of the properties and assets of the Company.
(c) Notwithstanding
clauses (1) and (2) of Section 5.01(a) hereof, but subject to the proviso in clause (1)(B)(i) of Section 5.01(a),
the Company may merge with (x) any of its Wholly Owned Restricted Subsidiaries or (y) an Affiliate that is a Person that has
no material assets or liabilities and which was organized solely for the purpose of reorganizing the Company in another jurisdiction.
For the avoidance of doubt, nothing in this Section 5.01 shall prevent the Company or a Restricted Subsidiary from consummating
the Company Conversion.
ARTICLE 6
EVENTS OF DEFAULT
The Notes shall not be subject to Section 6.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 6.01 of this Supplemental
Indenture:
Section 6.01. Events
of Default. Any of the following events shall constitute an event of default (an “Event of Default”):
(a) the
failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;
(b) the
failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer) on the date specified for such payment
in the applicable offer to purchase;
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(c) a
default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a
period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except (i) in the case of a default
with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of
time requirement and (ii) as otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture);
(d) the
failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any
such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been so accelerated
(in each case with respect to which the 30-day period described above has passed), equals $500.0 million or more at any time;
(e) the
Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Material Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a custodian for it or for all or substantially all of its property,
(4) makes
a general assignment for the benefit of its creditors, or
(5) an
admission by the Company in writing of its inability to pay its debts as they become due;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case;
(2) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary; or
(3) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary; and the order or decree remains unstayed and in effect for
60 consecutive days.
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Section 6.02. Other
Amendments. The Notes shall be subject to Section 6.02 through Section 6.11 of the Base Indenture, except that the references
to “clause (d) or (e) of Section 6.01 hereof” in Section 6.02 of the Base Indenture shall be deemed references
to “clause (e) or (f) of Section 6.01 with respect to the Company” of this Supplemental Indenture.
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01. Legal
Defeasance and Covenant Defeasance. The Notes shall be subject to Article 8 of the Base Indenture, except that:
(a) Section 8.03
of the Base Indenture is amended by replacing the final sentence thereof with the following: “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, Section 6.01(c) and Section 6.01(f) hereof will not constitute Events of Default
with respect to the Notes”.
(b) Section 8.04(a) of
the Base Indenture is amended by replacing such Section 8.04(a) with the following: “The Company must irrevocably deposit
with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee), for the benefit of the Holders, cash in U.S.
Dollars, non-callable U.S. government obligations, rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case
may be.”
(c) Section 8.04(e) of
the Base Indenture is amended by including “or any of its Restricted Subsidiaries” immediately following each of the last
two instances of “the Company” in such Section 8.04(e).
(d) Section 8.04(h) of
the Base Indenture is amended by replacing such Section 8.04(h) with the following: “[Reserved.]”
ARTICLE 8
SATISFACTION AND DISCHARGE
The Notes shall be subject to Article 10
of the Base Indenture, except that:
(a) Paragraph (2) of clause (a) of
Section 10.01 of the Base Indenture is amended by replacing such paragraph (2) with the following: “all Notes not theretofore
delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable within one year,
or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee) funds in an amount in cash in
U.S. dollars, non-callable U.S. government obligations rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal
of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be.”
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Amendment,
Supplement and Waiver. The Notes shall be subject to Article 9 of the Base Indenture, except that:
(a) Section 9.02(6) is
amended by replacing “; or” at the end of such clause (6) with“;”;
(b) Section 9.02(7) is
amended by replacing the period at the end of such clause (7) with “;”; and
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(c) immediately
following Section 9.02(7), as amended above, the following clause shall be added: “(8) after the Company’s obligation
to purchase Notes arises under the Indenture or the Notes, amend, change or modify in any material respect the obligation of the Company
to make and consummate a Change of Control Offer in the event of a Change of Control Triggering Event or, after such Change of Control
Triggering Event has occurred, modify any of the provisions or definitions of the Indenture or the Notes with respect thereto.”
ARTICLE 10
MISCELLANEOUS
Section 10.01. Sinking
Funds. The Notes shall not have the benefit of a sinking fund.
Section 10.02. Supplemental
Indenture. The terms of this Supplemental Indenture may be modified as set forth in Article 9 of the Base Indenture as provided
in such Article 9 after giving effect to Article 9 of this Supplemental Indenture.
Section 10.03. No
Guarantees. The Notes will not be guaranteed by any Subsidiary of the Company or entitled to any guarantee.
Section 10.04. Confirmation
of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Section 10.05. Counterpart;
Notices. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement. Counterparts may be delivered via facsimile and electronic mail (including any Electronic Signature)
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This Supplemental Indenture shall be subject to Section 11.02 of the Base Indenture, except that, for purpose of this Supplemental
Indenture, all references in such Section 11.02 to electronic or e-mail transmission or delivery shall be deemed to include Electronic
Signatures. For purposes hereof, “Electronic Signatures” shall mean any digital signature provided by DocuSign (or
such other digital signature provider as specified in writing to the Trustee by an Officer of the Company). The Company agrees to assume
all risks arising out of the use of using digital signatures and electronic methods to submit communications 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.
Section 10.06. Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10.07. Waiver
of Jury Trial. EACH OF THE COMPANY 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 SUPPLEMENTAL INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.08. Trustee
Disclaimer. The Trustee shall have no responsibility for the validity or sufficiency of this Supplemental Indenture.
[the remainder of this page is intentionally
left blank]
-24-
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the day and year first written above.
EQUINIX, INC.,
as Issuer
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
[Equinix Twenty-Second Supplemental Indenture]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
/s/ Lauren Costales
Name:
Lauren Costales
Title:
Vice President
[Equinix Twenty-Second Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
5.500% Senior Notes due 2033
[Insert the Global Security Legend, if applicable,
pursuant to the provisions of the Indenture]
A-1
[Face of Note]
CUSIP 29444U
BY1
5.500% Senior Notes due 2033
No. ________
$__________
Equinix, Inc.
promises to pay to Cede & Co. or registered assigns,
the principal sum of ________________________ DOLLARS on August 15,
2033.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2027
Record Dates: February 1 and August 1
Dated: ______, 20__
Equinix, Inc.
By:
Name:
Title:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association,
Trustee, certifies
that this is one of the Notes referred
to in the
Supplemental Indenture.
By:
Authorized Signatory
A-2
[Back of Note]
5.500% Senior Notes due 2033
Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Equinix, Inc.,
a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 5.500% per
annum from August 6, 2026, until maturity. The Company will pay interest semi-annually in arrears on February 15 and August 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 February 15, 2027. 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 equal to the interest 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 daily 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 of Notes at the close of
business on the February 1 or August 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 2.14
of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at
the office or agency of the Company maintained for such purpose within or without the United States, or, at the option of the Company,
payment of interest 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 and interest, premium 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.
(3) PAYING AGENT AND REGISTRAR. Initially,
U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in the capacity of Paying Agent or Registrar.
(4) INDENTURE. The Company issued
the Notes under an Indenture, dated as of December 12, 2017 (the “Base Indenture” and, as supplemented by the
Supplemental Indenture (as defined below), the “Indenture”), by and between the Company and the Trustee, as supplemented
by that certain Twenty-Second Supplemental Indenture, dated as of August 6, 2026, by and between the Company and the Trustee (the
“Supplemental Indenture”). The terms of this Note include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for
a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company.
(5) OPTIONAL REDEMPTION.
(a) Prior
to June 15, 2033 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part,
at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal
places) equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the Redemption Date (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date
of redemption (the “Redemption Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding the Redemption Date.
A-3
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Article 3 of the Supplemental Indenture.
(d) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(6) NOTICE OF REDEMPTION. Notice of
redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to
be redeemed at its registered address and the Trustee, except that redemption notices with respect to any redemption pursuant to Section 3.02
of the Supplemental Indenture may be delivered 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. Notes in denominations larger than $2,000 may be redeemed
in part in connection with any redemption pursuant to Section 3.02, but only in whole multiples of $1,000 unless all of the Notes
held by a Holder are to be redeemed and provided that any unredeemed portion of a Note is equal to $2,000 or a multiple of $1,000
in excess thereof. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease
to accrue on the Notes or portions thereof called for redemption.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) In
the event that the Company or a Restricted Subsidiary is required to commence an offer to all Holders to purchase Notes pursuant to Section 4.05
of the Supplemental Indenture, it will comply with the terms set forth in the Supplemental Indenture, including Section 3.04 thereof.
(b) If
a Change of Control Triggering Event occurs, unless the Company or a third party has previously or concurrently delivered a redemption
notice with respect to all outstanding notes, as described under Section 3.02 of the Supplemental Indenture, the Company will be
required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part of such Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest,
if any, on the Notes repurchased to but not including the date of repurchase, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control Triggering Event,
the Company will deliver a notice to each Holder, with a copy to the Trustee, setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(8) DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons 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 to be
redeemed in part that is equal to $2,000 or a multiple of $1,000 in excess thereof. Also, the Company need not issue, register the transfer
of or exchange 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.
(9) PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.
A-4
(10) AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental
Indenture) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer
for purchase of, the Notes), and any existing Default or Event or Default, other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes (except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture and the Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental Indenture) voting as
a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for purchase of,
the Notes). Without the consent of any Holder of Notes, the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency; provide for the assumption by a Surviving Entity of the obligations of the Company under the Indenture; provide
for uncertificated Notes in addition to or in place of certificated Notes; secure the Notes, add to the covenants of the Company for
the benefit of the holders of the Notes or surrender any right or power conferred upon the Company; make any change that does not adversely
affect the rights of any holder of the Notes; comply with any requirement of the Commission in connection with the qualification of the
Indenture under the TIA; provide for the issuance of Additional Notes in accordance with the Supplemental Indenture; evidence and provide
for the acceptance of appointment by a successor Trustee; conform the text of the Indenture or the Notes to any provision of the “Description
of the 2029, 2033 and 2036 Notes” of the Prospectus to the extent that such provision in the “Description of the 2029, 2033
and 2036 Notes” of the Prospectus was intended to be a recitation of a provision of the Indenture or the Notes; or make any amendment
to the provisions of the Indenture relating to the transfer and legending of the Notes as permitted by the Indenture, including, without
limitation to facilitate the issuance and administration of the Notes; provided that (i) compliance with the Indenture as
so amended would not result in the Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such
amendment does not materially and adversely affect the rights of Holders to transfer the Notes.
(11) DEFAULTS AND REMEDIES. Events of Default
with respect to the Notes include: (i) failure by the Company to pay interest on any Notes when such interest becomes due and payable
and the default continues for a period of 30 days; (ii) failure by the Company to pay the principal on any Notes when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer); (iii) failure by the Company for 60 days after 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
other covenants or agreements in the Indenture (except (i) in the case of a default with respect to Section 5.01 of the Supplemental
Indenture, which will constitute an Event of Default with such notice requirement but without such passage of time requirement and (ii) as
otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture); (iv) the failure to pay at final maturity
(giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company
or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Restricted Subsidiary of notice of any
such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has been so accelerated (in each case with respect to which
the 30-day period described above has passed), equals $500.0 million or more at any time; (v) the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary, pursuant to or within the meaning of Bankruptcy Law, commences a voluntary case, consents to the entry of an order
for relief against it in an involuntary case, consents to the appointment of a custodian for it or for all or substantially all of its
property, makes a general assignment for the benefit of its creditors, or an admission by the Company in writing of its inability to
pay its debts as they become due; or (vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
is for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case; appoints a custodian of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary or orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Material Subsidiary and the order or decree
remains unstayed and in effect for 60 consecutive days.
A-5
If any Event of Default with respect to outstanding
Notes occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare the principal of, and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration” and the same shall be
immediately due and payable.
Notwithstanding the foregoing, in the case of
an Event of Default arising from the events of bankruptcy or insolvency specified in clauses (v) or (vi) in the second preceding
paragraph above occurring with respect to the Company, all unpaid principal of and accrued and unpaid interest on all of the outstanding
Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or premium,
if any) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the 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. The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, within five Business Days of any Officer becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
(12) TRUSTEE DEALINGS WITH THE COMPANY.
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.
(13) NO RECOURSE AGAINST OTHERS. No past,
present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or under the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liabilities. The waiver
and release are part of the consideration for the issuance of the Notes.
(14) AUTHENTICATION. This Note will not
be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(15) 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).
(16) 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.
(17) GOVERNING LAW. THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE 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.
A-6
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Equinix, Inc.
One Lagoon Drive
Redwood City, CA 94065
United States of America
Attention: Chief Financial Officer
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-7
OPTION OF HOLDER TO ELECT
PURCHASE
If you want to elect to have this Note purchased
by the Company pursuant to Section 4.05 (Change of Control Offer) of the Supplemental Indenture, check the box below:
¨
Section 4.05
If you want to elect to have only part of the
Note purchased by the Company pursuant to Section 4.05 of the Supplemental 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-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note
for an interest in this Global Note, have been made:
Date
of Exchange
Amount
of
decrease
in Principal
Amount of this
Global Note
Amount
of
increase
in Principal
Amount of this
Global Note
Principal
Amount of
this Global Note
following such
decrease
(or increase)
Signature
of
authorized officer
of
Trustee or
Custodian
*
This schedule should be included only if the Note
is issued in global form.
A-9
EX-4.5 — EXHIBIT 4.5
EX-4.5
Filename: tm2622384d1_ex4-5.htm · Sequence: 6
Exhibit 4.5
EQUINIX, INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee,
5.800% Senior Notes due 2036
Twenty-Third Supplemental Indenture
Dated as of August 6, 2026
to
Indenture dated as of December 12, 2017
TABLE
OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions
1
Section 1.02.
Conflicts with Base Indenture
15
ARTICLE 2
THE
NOTES
Section 2.01.
Amount; Series; Terms
15
Section 2.02.
Denominations
15
Section 2.03.
Form of Notes
15
ARTICLE 3
REDEMPTION
AND PREPAYMENT
Section 3.01.
Redemption
16
Section 3.02.
Optional Redemption of the Notes
16
Section 3.03.
[Reserved]
16
Section 3.04.
Repurchase Offer
16
ARTICLE 4
COVENANTS
Section 4.01.
Payment of Notes
18
Section 4.02.
Reports to Holders
18
Section 4.03.
Sale and Leaseback Transactions
18
Section 4.04.
Limitation on Liens
19
Section 4.05.
Offer to Repurchase Upon Change of Control Triggering
Event
19
ARTICLE 5
MERGER,
CONSOLIDATION, OR SALE OF ASSETS
Section 5.01.
Merger, Consolidation, or Sale of Assets
20
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01.
Events of Default
21
Section 6.02.
Other Amendments
23
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT
DEFEASANCE
Section 7.01.
Legal Defeasance and Covenant Defeasance
23
ARTICLE 8
SATISFACTION AND DISCHARGE
-i-
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Amendment, Supplement and Waiver
23
ARTICLE 10
MISCELLANEOUS
Section 10.01.
Sinking Funds
24
Section 10.02.
Supplemental Indenture
24
Section 10.03.
No Guarantees
24
Section 10.04.
Confirmation of Indenture
24
Section 10.05.
Counterpart; Notices
24
Section 10.06.
Governing Law
24
Section 10.07.
Waiver of Jury Trial
24
Section 10.08.
Trustee Disclaimer
24
Exhibit A
Form of Note
A-1
-ii-
TWENTY-THIRD SUPPLEMENTAL INDENTURE, dated as
of August 6, 2026 (this “Supplemental Indenture”), to the Indenture dated as of December 12, 2017 (as amended,
modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities,
the “Base Indenture” and, as amended, modified and supplemented by this Supplemental Indenture, the “Indenture”),
by and between Equinix, Inc. (the “Company,” as more fully set forth in Section 1.01), and U.S. Bank Trust
Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Notes (as defined herein):
WHEREAS, the Company has duly authorized the execution
and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to be issued in one or more
series as provided in the Base Indenture;
WHEREAS, the Company has duly authorized the execution
and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Supplemental Indenture in order
to establish and provide for the issuance by the Company of a series of Notes designated as its 5.800% Senior Notes due 2036 (the “Initial
Notes”) in an aggregate principal amount of $650,000,000, on the terms set forth herein;
WHEREAS, Article 9 of the Base Indenture
provides that a supplemental indenture may be entered into by the parties for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base
Indenture for the execution and delivery of this Supplemental Indenture have been met; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture
with respect to the Notes have been done;
NOW, THEREFORE:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
In addition to the definitions set forth in Article 1
of the Base Indenture, this Supplemental Indenture shall include the following definitions, which, in the event of a conflict with the
definition of terms in the Base Indenture, shall control:
“Additional Notes” has the
meaning set forth in Section 2.01(b).
“Acquired Indebtedness” means
Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or
at the time it merges or consolidates with or into the Company or any of its Subsidiaries or that is assumed in connection with the acquisition
of assets from such Person, in each case whether or not incurred by such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation.
“Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the
Depositary to the extent applicable to such transfer or exchange.
“ASC” means FASB Accounting Standards
Codification.
“Asset Acquisition” means (1) an
investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets
of any Person (other than a Restricted Subsidiary of the Company) that constitute all or substantially all of the assets of such Person
or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary
course of business.
“Attributable Debt” means,
in respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback
Transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback
Transaction.
“Base Indenture” has the meaning
specified in the introductory paragraph of this Supplemental Indenture.
“Cash Equivalents” means:
(a) debt
securities denominated in Euro, pounds sterling or U.S. dollars to be issued or directly and fully guaranteed or insured by the government
of a Participating Member State, the U.K. or the U.S., as applicable, where the debt securities have not more than twelve months to final
maturity and are not convertible into any other form of security;
(b) commercial
paper denominated in Euro, pounds sterling or U.S. dollars maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least P1 from Moody’s and A1 from S&P;
(c) certificates
of deposit denominated in Euro, pounds sterling or U.S. dollars having not more than twelve months to maturity issued by a bank or financial
institution incorporated or having a branch in a Participating Member State in the United Kingdom or the United States, provided
that the bank is rated P1 by Moody’s or A1 by S&P;
(d) any
cash deposit denominated in Euro, pounds sterling or U.S. dollars with any commercial bank or other financial institution, in each case
whose long term unsecured, unsubordinated debt rating is at least A3 by Moody’s or A- by S&P;
(e) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered
into with any bank or financial institution meeting the qualifications specified in clause (d) above; and
(f) investments
in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.
“Change of Control” means the
occurrence of one or more of the following events:
(1) any
sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets
of the Company to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of the Indenture);
(2) the
approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the provisions of the Indenture); or
(3) any
Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company.
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For the avoidance of doubt, the consummation of
the Company Conversion shall not constitute a “Change of Control.”
“Change of Control Offer” has
the meaning set forth in Section 4.05(a).
“Change of Control Payment”
has the meaning set forth in Section 4.05(a).
“Change of Control Payment Date”
has the meaning set forth in Section 4.05(b).
“Change of Control Triggering Event”
means, in each case, the occurrence of both (i) a Change of Control and (ii) a Rating Event.
“Company” has the meaning specified
in the introductory paragraph of this Supplemental Indenture, and subject to the provisions of ARTICLE 5, shall include its successors
and assigns.
“Company Conversion” means
the actions taken by the Company and its Subsidiaries in connection with Company’s qualification as a REIT, including without limitation,
(y) separating from time to time all or a portion of its United States and international businesses into, as defined by the Code,
taxable REIT subsidiaries (“TRS”) and/or qualified REIT subsidiaries (“QRS”) (it being understood
that any such TRS and/or QRS shall remain Restricted Subsidiaries, as applicable, as prior to the Company Conversion) and (z) amending
its charter to impose ownership limitations on the Company’s Capital Stock directly or indirectly by merging into a Wholly Owned
Restricted Subsidiary of the Company.
“Consolidated Depreciation, Amortization
and Accretion Expense” means with respect to any Person for any period, the total amount of depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period)
and accretion expense, including the amortization of deferred financing fees or costs of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means,
with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased
(without duplication) by the following, in each case to the extent deducted in determining Consolidated Net Income for such period:
(1) provision
for taxes based on income or profits or capital, including, without limitation, federal, state, franchise and similar taxes and foreign
withholding taxes (including any levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed
by a governmental agency, and any related interest, penalty, charge, fee or other amount) of such Person paid or accrued during such
period deducted (and not added back) in computing Consolidated Net Income; plus
(2) Consolidated
Interest Expense of such Person for such period to the extent the same were deducted (and not added back) in calculating such Consolidated
Net Income; plus
(3) Consolidated
Depreciation, Amortization and Accretion Expense of such Person for such period to the extent that the same were deducted (and not added
back) in computing Consolidated Net Income; plus
(4) any
expenses or charges (other than depreciation or amortization expense) related to any Equity Offering or the incurrence of Indebtedness
permitted to be incurred in accordance with the Indenture (including a refinancing thereof) (whether or not successful), in each case,
deducted (and not added back) in computing Consolidated Net Income; plus
(5) any
other Non-cash Charges, including any provisions, provision increases, write-offs or write-downs reducing Consolidated Net Income for
such period (provided that if any such Non-cash Charges represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent), and excluding
amortization of a prepaid cash item that was paid in a prior period; plus
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(6) any
costs or expenses incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement or any stock subscription or stockholder agreement, to the extent that such cost
or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest
of the Company (other than Disqualified Capital Stock); plus
(7) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net
Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant
to clause (b) below for any previous period and not added back; plus
(8) any
net loss from disposed or discontinued operations; plus
(9) any
net unrealized loss (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized loss on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
(10) any
net unrealized loss (after any offset) resulting in such period from (A) currency translation or exchange losses including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates; plus
(11) the
amount of any minority interest expense (less the amount of any cash dividends paid in such period to holders of such minority interests);
plus
(12) the
amount of any costs and expenses associated with the Company Conversion, including, without limitation, planning and advisory costs related
to the foregoing; and
(b) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(1) non-cash
gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the
reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains
with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period;
(2) any
net gain from disposed or discontinued operations;
(3) any
net unrealized gain (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Company), the realized gain on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
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(4) any
net unrealized gains (after any offset) resulting in such period from (A) currency translation or exchange gains including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates.
For purposes of this definition, calculations
shall be done after giving effect on a pro forma basis for the period of such calculation to:
(1) the
incurrence or repayment of any Indebtedness or the designation or elimination (including by de-designation) of any Designated Revolving
Commitments of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need
to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment of Indebtedness or designation or elimination (including by de-designation)
of Designated Revolving Commitments, as the case may be (and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period (and in the case of Designated Revolving Commitments, as if Indebtedness in the full amount of any undrawn Designated
Revolving Commitments had been incurred throughout such period); and
(2) any
asset sales or other dispositions or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated
under the Exchange Act) attributable to the assets which are the subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any
of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect
to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness.
“Consolidated Interest Expense”
means, with respect to any Person for any period, the sum of, without duplication:
(1) the
aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any amortization of debt discount and the amortization or write-off of deferred
financing costs, including commitment fees; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest;
(d) non-cash interest expense (other than non-cash interest on any convertible or exchangeable debt issued by the Company that exists
by virtue of the bifurcation of the debt and equity components of such convertible or exchangeable notes and the application of ASC 470-20
(or related accounting pronouncement(s))); (e) commissions, discounts and other fees and charges owed with respect to letters of
credit and banker’s acceptance financing; (f) dividends with respect to Disqualified Capital Stock; (g) dividends with
respect to Preferred Stock of Restricted Subsidiaries of such Person; (h) imputed interest with respect to Sale and Leaseback Transactions;
and (i) the interest portion of any deferred payment obligation; plus
(2) the
interest component of Finance Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP; less
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(3) interest
income for such period.
“Consolidated Net Income” means,
with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication):
(1) any
after tax effect of extraordinary, non-recurring or unusual gains or losses (including all fees and expenses relating thereto) or expenses;
(2) any
net after tax gains or losses on disposal of disposed, abandoned or discontinued operations;
(3) any
after tax effect of gains or losses (including all fees and expenses relating thereto) attributable to sale, transfer, license, lease
or other disposition of assets or abandonments or the sale, transfer or other disposition of any Equity Interest of any Person other
than in the normal course of business;
(4) the
net income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the
equity method of accounting, except to the extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary
of the Company by such Person;
(5) any
after tax effect of income (loss) from the early extinguishment of (1) Indebtedness, (2) obligations under any Currency Agreement
or (3) other derivative instruments;
(6) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant
to GAAP, and the amortization of intangibles arising pursuant to GAAP;
(7) any
non-cash compensation charge or expense including any such charge arising from the grants of stock appreciation or similar rights, stock
options, restricted stock or other rights;
(8) any
fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any issuance or repayment
of Indebtedness, issuance of Equity Interests, refinancing transaction, amendment or modification of any debt instrument;
(9) income
or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued);
(10) in
the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any
earnings of the successor entity prior to such consolidation, merger or transfer of assets;
(11) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by contract, operation of law or otherwise; and
(12) acquisition-related
costs resulting from the application of ASC 805.
In addition, to the extent not already included
in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
but without duplication, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any
sale, conveyance, transfer or other disposition of assets permitted under the Indenture (in each case, whether or not non-recurring).
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“Currency Agreement” means
any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.08 of the Base Indenture, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global Security Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“delivered” with respect to
any notice to be delivered, given or mailed to a Holder pursuant to the Indenture, shall mean (x) notice given to the Depositary
(or its designee) in accordance with accepted procedures of the Depositary (in the case of a Global Note) or (y) notice mailed to
such Holder by first class mail, postage prepaid, at its address as it appears on the register of Holders. Notice so “delivered”
shall be deemed to include any notice to be “mailed” or “given,” as applicable, under the Indenture.
“Designated Revolving Commitments”
means the amount or amounts of any commitments to make loans or extend credit on a revolving basis to the Company or any of its Restricted
Subsidiaries by any Person other than the Company or any of its Restricted Subsidiaries that has or have been designated (but only to
the extent so designated) in an Officers’ Certificate delivered to the Trustee as “Designated Revolving Commitments”
until such time as the Company subsequently delivers an Officers’ Certificate to the Trustee to the effect that the amount or amounts
of such commitments shall no longer constitute “Designated Revolving Commitments.”
“Disqualified Capital Stock”
means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute
a Change of Control), matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control), in each case, on or prior to the
final maturity date of the Notes.
“Domestic Restricted Subsidiary”
means a Restricted Subsidiary incorporated or otherwise organized under the laws of the United States, any State thereof or the District
of Columbia.
“Electronic Signatures” has
the meaning set forth in Section 10.05.
“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 any
public or private sale of Common Stock or Preferred Stock of the Company (excluding Disqualified Capital Stock), other than:
(a) public
offerings with respect to the Company’s or any direct or indirect parent company’s common stock registered on Form S-4
or Form S-8 (or similar forms under non-U.S. law);
(b) issuances
to any Subsidiary of the Company;
(c) issuances
pursuant to the exercise of options or warrants outstanding on the date hereof;
(d) issuances
upon conversion of securities convertible into Common Stock outstanding on the date hereof;
(e) issuances
in connection with an acquisition of property in a transaction entered into on an arm’s-length basis; and
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(f) issuances
pursuant to employee stock plans.
“Euro” means the lawful currency
of the member states of the European Union who have agreed to share a common currency in accordance with the provisions of the Maastricht
Treaty dealing with European monetary union.
“Event of Default” has the
meaning set forth in Section 6.01.
“fair market value” means,
with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
Fair market value shall be determined by the Board of Directors of the Company or any duly appointed officer of the Company or a Restricted
Subsidiary, as applicable, acting reasonably and in good faith and, in respect of any asset or property with a fair market value in excess
of $100.0 million, shall be determined by the Board of Directors of the Company and shall be evidenced by a Board Resolution of the Board
of Directors of the Company delivered to the Trustee.
“Finance Lease Obligations”
means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as finance
lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
“Fitch” means Fitch Ratings
Inc. or any successor to the rating agency business thereof.
“Four Quarter Period” means
the period of four full fiscal quarters for which financial statements are available ending prior to the date of the transaction (the
“Transaction Date”) giving rise to the need to make such calculation.
“GAAP” means generally accepted
accounting principles set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect
as of July 11, 2011.
“Global Notes” means, individually
and collectively, each of the Global Securities 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 Security Legend and that has the “Schedule
of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.03 of the Base Indenture
and Section 2.03 hereof.
“Holder” means a Person in
whose name a Note is registered.
“incur” means, collectively,
create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible
for payment of (collectively, “incur”) any Indebtedness.
“Indebtedness” means with respect
to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
(2) all
Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all
Finance Lease Obligations and all Attributable Debt of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations
under any title retention agreement (but excluding (i) trade accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 120 days or more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet
of such Person in accordance with GAAP);
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(5) all
Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other
than obligations with respect to letters of credit (A) securing Obligations (other than Obligations described in (1)-(4) above)
entered into the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or (B) that are otherwise cash collateralized;
(6) guarantees
and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
(7) all
Obligations of any other Person of the type referred to in clauses (1) through (6) that are secured by any Lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset
or the amount of the Obligation so secured;
(8) all
Obligations under Currency Agreements and Interest Swap Obligations of such Person;
(9) all
Disqualified Capital Stock issued by such Person or Preferred Stock issued by such Person’s non-Domestic Restricted Subsidiaries
with the amount of Indebtedness represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; and
(10) the
aggregate amount of Designated Revolving Commitments in effect on such date.
For purposes hereof, the “maximum fixed
repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value
of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors
of the issuer of such Disqualified Capital Stock.
“Indenture” means the Base
Indenture, as supplemented by this Supplemental Indenture, as amended or supplemented from time to time.
“Initial Notes” has the meaning
specified in the recitals of this Supplemental Indenture.
“Interest Swap Obligations”
means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
“Interest Payment Date” has
the meaning set forth in Section 2.01(d).
“Investment Grade Rating” means
a rating equal to or greater than BBB- by S&P and Fitch and Baa3 by Moody’s or the equivalent thereof under any new ratings
system if the ratings system of any such agency shall be modified after the Issue Date, or the equivalent rating of any other Rating
Agency selected by the Company as provided in the definition of “Rating Agency.”
“Issue Date” means August 6,
2026.
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“Material Subsidiary” means
a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act.
“Moody’s” means Moody’s
Investors Service, Inc., or any successor to the rating agency business thereof.
“Non-cash Charges” means, with
respect to any Person, (a) losses on asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related
to intangible assets, long-lived assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from investments
recorded using the equity method, (d) stock-based awards compensation expense, and (e) other non-cash charges (provided
that if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period).
“Notes” means, for all purposes
under the Indenture (including, without limitation, the covenants set forth in the Base Indenture) the Initial Notes issued on the date
hereof and any Additional Notes. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under
the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional
Notes.
“Obligations” means all obligations
for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“Offer Amount” has the meaning
set forth in Section 3.04.
“Offer Period” has the meaning
set forth in Section 3.04.
“Officers’ Certificate”
means a certificate signed by two Officers, at least one of whom shall be the principal executive officer or principal financial officer
of the Company, and delivered to the Trustee.
“Par Call Date” means May 15, 2036.
“Pari Passu Indebtedness” means
any Indebtedness of the Company that ranks pari passu in right of payment with the Notes.
“Participating Member State”
means each state, so described in any European Monetary Union legislation, which was a participating member state on December 31,
2003.
“Permitted Liens” means the
following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with
past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;
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(5) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material
respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(6) any
interest or title of a lessor under any Finance Lease Obligation; provided that such Liens do not extend to any property or assets
which is not leased property subject to such Finance Lease Obligation (other than other property that is subject to a separate lease
from such lessor or any of its Affiliates);
(7) Liens
securing Purchase Money Indebtedness incurred in the ordinary course of business; provided that (a) such Purchase Money Indebtedness
shall not exceed the purchase price or other cost of such property or equipment and shall not be secured by any property or equipment
of the Company or any Restricted Subsidiary of the Company other than the property and equipment so acquired or other property that was
acquired from such seller or any of its Affiliates with the proceeds of Purchase Money Indebtedness and (b) the Lien securing such
Purchase Money Indebtedness shall be created within 360 days of such acquisition;
(8) 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;
(9) 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;
(10) Liens
securing Interest Swap Obligations;
(11) Liens
securing Indebtedness under Currency Agreements;
(12) Liens
securing Acquired Indebtedness; provided that
(a) such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company; and
(b) such
Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(13) Liens
on assets of a Restricted Subsidiary of the Company;
(14) leases,
subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(15) banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;
(16) Liens
arising from filing Uniform Commercial Code financing statements regarding leases;
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(17) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation
of goods;
(18) Liens
(a) on inventory held by and granted to a local distribution company in the ordinary course of business and (b) in accounts
purchased and collected by and granted to a local distribution company that has agreed to make payments to the Company or any of its
Restricted Subsidiaries for such amounts in the ordinary course of business;
(19) [Reserved];
(20) Liens
securing Indebtedness in respect of Sale and Leaseback Transactions;
(21) [Reserved];
(22) Liens
securing Indebtedness in respect of mortgage financings; and
(23) Liens
with respect to obligations (including Indebtedness) of the Company or any of its Restricted Subsidiaries otherwise permitted under the
Indenture that do not exceed an amount equal to (x) 3.5 times (y) the Consolidated EBITDA of the Company for the Four
Quarter Period to and including the most recent fiscal quarter for which financial statements are internally available immediately preceding
such date.
“Prospectus” means the prospectus
dated February 13, 2026, as supplemented by the prospectus supplement dated July 30, 2026, prepared by the Company in connection
with the offering of the Initial Notes.
“Purchase Date” has the meaning
set forth in Section 3.04.
“Purchase Money Indebtedness”
means Indebtedness of the Company and its Restricted Subsidiaries incurred in the normal course of business for the purpose of financing
all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment.
“Rating Agency” means (1) each
of Fitch, Moody’s and S&P and (2) if Fitch, Moody’s or S&P ceases to rate the Notes for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62)
of the Exchange Act selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“Rating Event” means that the
Notes are downgraded by at least one rating category from the applicable rating of such Notes on the first day of the Trigger Period
by two of the Rating Agencies and/or cease to be rated by two of the Rating Agencies, in each case, on any date during the Trigger Period;
provided that a Rating Event will not be deemed to have occurred unless the rating category of the Notes is below an Investment
Grade Rating by two of the Rating Agencies; provided, further, that a Rating Event will not be deemed to have occurred
in respect of a particular Change of Control if each applicable downgrading Rating Agency does not publicly announce or confirm or inform
the Trustee in writing at the Company’s request that the reduction was the result of the Change of Control (whether or not the
applicable Change of Control has occurred at the time of the Change of Control Triggering Event). Notwithstanding the foregoing, no Rating
Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has
actually been consummated; provided that in the event that a Rating Agency does not provide a rating of Notes on the first day
of the Trigger Period, such absence of rating shall be treated as both a downgrade in the rating of such Notes below an Investment Grade
Rating by such Rating Agency and a downgrade that results in such Notes no longer being rated at the rating category in effect on the
first day of the Trigger Period by such Rating Agency, in each case, and shall not be subject to the second proviso in the immediately
preceding sentence. The Trustee shall have no obligation to determine whether a Rating Event has occurred.
“Redemption Date” has the meaning
set forth in Section 3.02(a).
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“REIT” means a “real
estate investment trust” as defined and taxed under Sections 856-860 of the Code.
“Repurchase Offer” has the
meaning set forth in Section 3.04.
“Restricted Subsidiary” of
any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.
“S&P” means Standard &
Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.
“Sale and Leaseback Transaction”
means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company
or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired,
which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from
whom funds have been or are to be advanced by such Person on the security of such property.
“Subordinated Indebtedness”
means Indebtedness of the Company that is subordinated or junior in right of payment to the Notes.
“Supplemental Indenture” has
the meaning specified in the introductory paragraph of this Supplemental Indenture.
“Tax” or “Taxes”
means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings (including backup withholdings), fees
and any charges of a similar nature (including interest, fines, penalties and other liabilities with respect thereto) that are imposed
by any government or other taxing authority.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
“Transaction Date” has the
meaning assigned thereto in the definition of “Four Quarter Period.”
“Treasury Rate”
means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the Redemption Date to the Par Call Date (the “Remaining Life”);
or
(2) if there is no such Treasury constant maturity on H.15 exactly equal
to the Remaining Life, the two yields – one yield corresponding to the Treasury constant
maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life – and shall interpolate
to the Par Call Date on a straight-line basis (using the actual number of days) using such
yields and rounding the result to three decimal places; or
(3) if there is no such Treasury constant maturity on H.15 shorter than
or longer than the Remaining Life, the yield for the single Treasury constant maturity on
H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury
constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to
the relevant number of months or years, as applicable, of such Treasury constant maturity
from the Redemption Date.
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If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual
yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed
as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three
decimal places.
“Trigger Period” means the
60-day period commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement
of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control (which Trigger Period will be
extended so long as the ratings of the Notes are under publicly announced consideration for possible downgrade by any two of the three
Rating Agencies); provided that the Trigger Period will terminate with respect to each Rating Agency when such Rating Agency takes action
(including affirming its existing ratings) with respect to such Change of Control.
“Trustee” has the meaning specified
in the introductory paragraph of this Supplemental Indenture.
“Unrestricted Subsidiary” of
any Person means:
(1) any
Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board
of Directors of such Person in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided that each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any
of its Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if, immediately before and immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.
“Wholly Owned Restricted Subsidiary”
means a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company
or another Wholly Owned Restricted Subsidiary.
Whenever this Supplemental Indenture refers to
a provision of the TIA, the provision is incorporated by reference in and made a part of this Supplemental Indenture.
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All terms used in this Supplemental Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings
so assigned to them.
Section 1.02. Conflicts
with Base Indenture. In the event that any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision
of the Base Indenture, such provision of this Supplemental Indenture shall control.
ARTICLE 2
THE NOTES
Section 2.01. Amount;
Series; Terms.
(a) There
is hereby created and designated one series of Notes under the Base Indenture: the title of the Notes shall be “5.800% Senior Notes Due 2036.” The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Notes that may be issued under the
Base Indenture unless a supplemental indenture with respect to such other series of Notes specifically incorporates such changes, modifications
and supplements.
(b) The
initial aggregate principal amount of Notes is $650,000,000. The Company shall be entitled to issue additional notes under this Supplemental
Indenture (“Additional Notes”) 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; provided that
such issuance is not prohibited by the terms of the Indenture. Any such Additional Notes shall be consolidated and form a single series
with the Initial Notes initially issued including for purposes of voting and redemption; provided that if such Additional Notes
are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall have one or more separate CUSIP
numbers. With respect to any Additional Notes, the Company shall set forth in a Board Resolution of its Board of Directors and in an
Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information: (i) the aggregate
principal amount of such Additional Notes to be authenticated and delivered pursuant to this Supplemental Indenture; and (ii) 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.
(c) The
Stated Maturity of the Notes shall be August 15, 2036. The Notes shall be payable and may
be presented for payment, purchase, redemption, registration of transfer and exchange, without service charge, at the office of the Company
maintained for such purpose in the United States, which shall initially be the office or agency of the Trustee in the United States.
(d) The
Notes shall bear interest at the rate of 5.800% per annum from August 6, 2026, or from the most recent date to which interest has
been paid or duly provided for, as further provided in the forms of Global Note annexed hereto as Exhibit A. Interest shall
be computed on the basis of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be payable (each,
an “Interest Payment Date”) shall be February 15 and August 15 of each year, beginning on February 15,
2027, and the record date for any interest payable on each such Interest Payment Date shall be the immediately preceding February 1
or August 1, respectively.
(e) The
Notes will be issued in the form of one or more Global Notes, deposited with the Trustee as custodian for the Depositary or its nominee,
duly executed by the Company and authenticated by the Trustee as provided in Sections 2.03 and 2.04 of the Base Indenture.
Section 2.02. Denominations.
The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 and any multiple of $1,000
in excess thereof.
Section 2.03. Form of
Notes. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto.
However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Redemption.
Pursuant to Section 3.01 of the Base Indenture, the following additional redemption provisions in this Article 3 shall apply
to the Notes.
Section 3.02. Optional
Redemption of the Notes.
(a) Prior
to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption
price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (as
defined below) (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date of redemption (the “Redemption
Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed, plus, in either case, accrued and
unpaid interest thereon, if any, to but excluding the Redemption Date (the “Make-Whole Premium”).
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Neither
the Trustee nor any Paying Agent shall have any obligation to calculate or verify the calculation of the Make-Whole Premium.
(d) The
provisions of Section 3.01 through Section 3.06 of the Base Indenture shall not apply to the Notes, and the following
provisions shall apply in lieu thereof:
(i) In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the
Trustee in its sole discretion deems appropriate and fair.
(ii) No
Notes of a principal amount of $2,000 or less shall be redeemed in part.
(iii) Notice
of redemption will be delivered at least 10 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed,
the Trustee and the Paying Agent; provided that, if the redemption notice is issued in connection with a defeasance of the Notes
or satisfaction and discharge of the Indenture governing the Note in accordance with the Indenture, the notice of redemption may be delivered
more than 60 calendar days before the date of redemption. If any Note is to be redeemed in part only, then the notice of redemption that
relates to such Note must state the portion of the principal amount of such Note to be redeemed. A new Note in a principal amount equal
to the unredeemed portion of such Note will be issued in the name of the Holder of such Note upon cancellation of the original Note.
Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the
Notes or portions thereof called for redemption.
(e) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(f) For
so long as the Notes are held by the Depositary (or another depositary), any redemption of the Notes shall be done in accordance with
the Applicable Procedures.
Section 3.03. [Reserved].
Section 3.04. Repurchase
Offer. In the event that, pursuant to Section 4.05 hereof, the Company or a Restricted Subsidiary is required to commence an
offer to all Holders to purchase Notes (a “Repurchase Offer”), it shall follow the procedures specified below.
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The Repurchase Offer shall remain open for a period
of at least 20 Business Days following its commencement, except to the extent that a shorter or longer period is permitted or required,
as the case may be, by applicable law (the “Offer Period”). No later than five Business Days after the termination
of the Offer Period (the “Purchase Date”), the Company will purchase at the purchase price (as determined in accordance
with Section 4.05 hereof, as the case may be) the principal amount of Notes required to be purchased pursuant to Section 4.05
hereof, as the case may be (the “Offer Amount”) and, if required, Pari Passu Indebtedness (on a pro rata basis, if
applicable), or, if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered in response to the Repurchase
Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
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, to, but not including, the Purchase
Date 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 Repurchase Offer.
Upon the commencement of a Repurchase Offer, the
Company will deliver or cause to be delivered a notice to each of the Holders, with a copy to the Trustee. The notice will contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Repurchase Offer. The notice, which will
govern the terms of the Repurchase Offer, will state:
(a) that
the Repurchase Offer is being made pursuant to this Section 3.04, and Section 4.05 hereof, and the length of time the Repurchase
Offer will remain open;
(b) the
Offer Amount, the purchase price and the Purchase Date;
(c) that
any Note not tendered or accepted for payment will continue to accrue interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue
interest after the Purchase Date;
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in minimum denominations of
$2,000, or integral multiples of $1,000 in excess thereof;
(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” attached to the Note 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;
(g) 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 telegram, telex, facsimile transmission or letter 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;
(h) that,
if the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee
will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by the Trustee so that no Notes in denominations of $2,000 or less will be purchased
in part); and
(i) 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).
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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
validly tendered pursuant to the Repurchase 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 3.04. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date)
deliver 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 deliver (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. Notwithstanding any other provision in the Indenture to the contrary, neither an Opinion of Counsel nor an Officers’
Certificate is required for the Trustee to authenticate such new Note. Any Note not so accepted shall be promptly returned by the Company
to the Holder thereof. The Company will publicly announce the results of the Repurchase Offer on or as soon as practicable after the
Purchase Date.
Other than as specifically provided in this Section 3.04
or Section 4.05 of this Supplemental Indenture, as applicable, any purchase pursuant to this Section 3.04 shall be made pursuant
to the applicable provisions of Section 3.01 through Section 3.06 of the Base Indenture.
ARTICLE 4
COVENANTS
In addition to the covenants set forth in Article 4
of the Base Indenture, the Notes shall be subject to the following additional covenants. Such additional covenants set forth in Sections
4.03 through Section 4.05 below shall be subject to covenant defeasance pursuant to Section 8.03 of the Base Indenture.
Section 4.01. Payment
of Notes. The following paragraph shall be added following the first paragraph of Section 4.01 of the Base Indenture: “The
Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, at the rate equal to 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 such rate to the extent lawful. Interest will be computed daily on the Notes on the basis of a 360-day year comprised of twelve 30-day
months (US 30/360)”.
Section 4.02. Reports
to Holders. The following sentence shall be added to the end of the second paragraph of Section 4.03 of the Base Indenture:
“If the Company had any Unrestricted Subsidiaries during the relevant period, the Company will also provide to the Trustee and,
upon request, to any Holder of the Notes, information sufficient to ascertain the financial condition and results of operations of the
Company and its Restricted Subsidiaries, excluding in all respects the Unrestricted Subsidiaries.”
Section 4.03. Sale
and Leaseback Transactions. The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any property or assets unless:
(1) the
Sale and Leaseback Transaction is solely with the Company or a Restricted Subsidiary;
(2) the
lease is for a period not in excess of 36 months (or which may be terminated by the Company or any of its Subsidiaries within a period
of not more than 36 months);
(3) the
Company would be able to incur Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction without equally and
ratably securing the Notes pursuant to Section 4.04(b) (other than in reliance on clause (20) of the definition of “Permitted
Liens”); or
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(4) the
Company or such Restricted Subsidiary within 365 days after the sale of such property in connection with such Sale and Leaseback Transaction
is completed, applies an amount equal to the net proceeds of the sale of such property to (i) the redemption of Notes, other Indebtedness
of the Company ranking on a parity with the Notes in right of payment or Indebtedness of the Company or a Restricted Subsidiary or (ii) the
purchase of other property; provided that, in lieu of applying such amount to the retirement of Pari Passu Indebtedness, the Company
may deliver Notes to the Trustee for cancellation; such Notes to be credited at the cost thereof to the Company.
Section 4.04. Limitation
on Liens. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom unless:
(a) in
the case of Liens securing Subordinated Indebtedness, the Notes are secured by a Lien on such property, assets or proceeds that is senior
in priority to such Liens; and
(b) in
all other cases, the Notes are equally and ratably secured,
except for:
(1) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(2) Liens
securing the Company’s and its Restricted Subsidiaries’ Obligations under any hedge facility permitted under the Indenture
to be entered into by the Company and its Restricted Subsidiaries;
(3) Liens
securing the Notes;
(4) Liens
in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company;
and
(5) Permitted
Liens.
(c) With
respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness,
such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any
Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, whether payable in
cash or in kind, accretion or amortization of original issue discount, imputed interest, the payment of interest in the form of additional
Indebtedness with the same terms or the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class, and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies
or increases in the value of property securing Indebtedness.
Section 4.05. Offer
to Repurchase Upon Change of Control Triggering Event.
(a) Upon
the occurrence of a Change of Control Triggering Event, unless the Company or a third party has previously or concurrently delivered
a redemption notice with respect to all outstanding Notes as described under Section 3.02, the Company will be required to make
an offer to purchase each Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”),
at a purchase price (the “Change of Control Payment”) equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to but not including the date of purchase.
(b) Within
30 days following the date upon which the Change of Control Triggering Event occurred, the Company must send (in the case of Notes represented
by Global Notes, in accordance with the Applicable Procedures), or cause the Trustee to send, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the Purchase
Date, which must be no earlier than 10 days nor later than 60 days after the date such notice is delivered, other than as may be required
by law (the “Change of Control Payment Date”). Holders electing to have a Note purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Note completed and specifying the portion (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s
Notes that it agrees to sell to the Company pursuant to the Change of Control Offer, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
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(c) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.05,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under
the provisions of this Section 4.05 by virtue of such conflict.
(d) On
the date of such Change of Control Payment, 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.
(e) The
Paying Agent will promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount
of $2,000 or an integral multiple of $1,000. The Company will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the date of such Change of Control Payment.
(f) The
Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if 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 the Indenture applicable
to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control
Offer. The Company (or a third party) may make a Change of Control Offer in advance of, and conditioned upon, any Change of Control Triggering
Event.
ARTICLE 5
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Notes shall not be subject to Section 5.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 5.01 of this Supplemental
Indenture:
Section 5.01. Merger,
Consolidation, or Sale of Assets.
(a) The
Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a consolidated basis for
the Company and the Company’s Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
(1) either:
(A) the
Company shall be the surviving or continuing corporation; or
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(B) the
Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”):
(i) shall
be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and
(ii) shall
expressly assume, by supplemental indenture (in form satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, interest on all of the Notes and the performance of every covenant of the
Notes and the Indenture on the part of the Company to be performed or observed;
(2) immediately
before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) of this Section 5.01(a),
no Default or Event of Default shall have occurred or be continuing; and
(3) the
Company or the Surviving Entity shall have delivered to the Trustee an 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 the Indenture
and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
(b) For
purposes of the provisions of Section 5.01(a) hereof, the transfer (by lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company,
in a single or a series of related transactions, which properties and assets, if held by the Company instead of such Restricted Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be
the transfer of all or substantially all of the properties and assets of the Company.
(c) Notwithstanding
clauses (1) and (2) of Section 5.01(a) hereof, but subject to the proviso in clause (1)(B)(i) of Section 5.01(a),
the Company may merge with (x) any of its Wholly Owned Restricted Subsidiaries or (y) an Affiliate that is a Person that has
no material assets or liabilities and which was organized solely for the purpose of reorganizing the Company in another jurisdiction.
For the avoidance of doubt, nothing in this Section 5.01 shall prevent the Company or a Restricted Subsidiary from consummating
the Company Conversion.
ARTICLE 6
EVENTS OF DEFAULT
The Notes shall not be subject to Section 6.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 6.01 of this Supplemental
Indenture:
Section 6.01. Events
of Default. Any of the following events shall constitute an event of default (an “Event of Default”):
(a) the
failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;
(b) the
failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer) on the date specified for such payment
in the applicable offer to purchase;
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(c) a
default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a
period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except (i) in the case of a default
with respect to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of
time requirement and (ii) as otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture);
(d) the
failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any
such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been so accelerated
(in each case with respect to which the 30-day period described above has passed), equals $500.0 million or more at any time;
(e) the
Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Material Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a custodian for it or for all or substantially all of its property,
(4) makes
a general assignment for the benefit of its creditors, or
(5) an
admission by the Company in writing of its inability to pay its debts as they become due;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case;
(2) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary; or
(3) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary; and the order or decree remains unstayed and in effect for
60 consecutive days.
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Section 6.02. Other
Amendments. The Notes shall be subject to Section 6.02 through Section 6.11 of the Base Indenture, except that the references
to “clause (d) or (e) of Section 6.01 hereof” in Section 6.02 of the Base Indenture shall be deemed references
to “clause (e) or (f) of Section 6.01 with respect to the Company” of this Supplemental Indenture.
ARTICLE 7
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01. Legal
Defeasance and Covenant Defeasance. The Notes shall be subject to Article 8 of the Base Indenture, except that:
(a) Section 8.03
of the Base Indenture is amended by replacing the final sentence thereof with the following: “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, Section 6.01(c) and Section 6.01(f) hereof will not constitute Events of Default
with respect to the Notes”.
(b) Section 8.04(a) of
the Base Indenture is amended by replacing such Section 8.04(a) with the following: “The Company must irrevocably deposit
with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee), for the benefit of the Holders, cash in U.S.
Dollars, non-callable U.S. government obligations, rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case
may be.”
(c) Section 8.04(e) of
the Base Indenture is amended by including “or any of its Restricted Subsidiaries” immediately following each of the last
two instances of “the Company” in such Section 8.04(e).
(d) Section 8.04(h) of
the Base Indenture is amended by replacing such Section 8.04(h) with the following: “[Reserved.]”
ARTICLE 8
SATISFACTION AND DISCHARGE
The Notes shall be subject to Article 10
of the Base Indenture, except that:
(a) Paragraph (2) of clause (a) of
Section 10.01 of the Base Indenture is amended by replacing such paragraph (2) with the following: “all Notes not theretofore
delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable within one year,
or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee) funds in an amount in cash in
U.S. dollars, non-callable U.S. government obligations rated AAA or better by S&P and Aaa by Moody’s, or a combination thereof,
sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal
of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be.”
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Amendment,
Supplement and Waiver. The Notes shall be subject to Article 9 of the Base Indenture, except that:
(a) Section 9.02(6) is
amended by replacing “; or” at the end of such clause (6) with“;”;
(b) Section 9.02(7) is
amended by replacing the period at the end of such clause (7) with “;”; and
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(c) immediately
following Section 9.02(7), as amended above, the following clause shall be added: “(8) after the Company’s obligation
to purchase Notes arises under the Indenture or the Notes, amend, change or modify in any material respect the obligation of the Company
to make and consummate a Change of Control Offer in the event of a Change of Control Triggering Event or, after such Change of Control
Triggering Event has occurred, modify any of the provisions or definitions of the Indenture or the Notes with respect thereto.”
ARTICLE 10
MISCELLANEOUS
Section 10.01. Sinking
Funds. The Notes shall not have the benefit of a sinking fund.
Section 10.02. Supplemental
Indenture. The terms of this Supplemental Indenture may be modified as set forth in Article 9 of the Base Indenture as provided
in such Article 9 after giving effect to Article 9 of this Supplemental Indenture.
Section 10.03. No
Guarantees. The Notes will not be guaranteed by any Subsidiary of the Company or entitled to any guarantee.
Section 10.04. Confirmation
of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Section 10.05. Counterpart;
Notices. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement. Counterparts may be delivered via facsimile and electronic mail (including any Electronic Signature)
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This Supplemental Indenture shall be subject to Section 11.02 of the Base Indenture, except that, for purpose of this Supplemental
Indenture, all references in such Section 11.02 to electronic or e-mail transmission or delivery shall be deemed to include Electronic
Signatures. For purposes hereof, “Electronic Signatures” shall mean any digital signature provided by DocuSign (or
such other digital signature provider as specified in writing to the Trustee by an Officer of the Company). The Company agrees to assume
all risks arising out of the use of using digital signatures and electronic methods to submit communications 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.
Section 10.06. Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10.07. Waiver
of Jury Trial. EACH OF THE COMPANY 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 SUPPLEMENTAL INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.08. Trustee
Disclaimer. The Trustee shall have no responsibility for the validity or sufficiency of this Supplemental Indenture.
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left blank]
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IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the day and year first written above.
EQUINIX, INC.,
as Issuer
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
[Equinix Twenty-Third Supplemental Indenture]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
/s/ Lauren Costales
Name:
Lauren Costales
Title:
Vice President
[Equinix Twenty-Third Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
5.800% Senior Notes due 2036
[Insert the Global Security Legend, if applicable,
pursuant to the provisions of the Indenture]
A-1
[Face of Note]
CUSIP 29444U
BX3
5.800% Senior Notes due 2036
No. ________
$__________
Equinix, Inc.
promises to pay to Cede & Co. or registered assigns,
the principal sum of ________________________ DOLLARS on August 15,
2036.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2027
Record Dates: February 1 and August 1
Dated: ______, 20__
Equinix, Inc.
By:
Name:
Title:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association,
Trustee, certifies
that this is one of the Notes referred
to in the
Supplemental Indenture.
By:
Authorized Signatory
A-2
[Back of Note]
5.800% Senior Notes due 2036
Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Equinix, Inc.,
a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 5.800% per
annum from August 6, 2026, until maturity. The Company will pay interest semi-annually in arrears on February 15 and August 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 February 15, 2027. 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 equal to the interest 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 daily 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 of Notes at the close of
business on the February 1 or August 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 2.14
of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at
the office or agency of the Company maintained for such purpose within or without the United States, or, at the option of the Company,
payment of interest 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 and interest, premium 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.
(3) PAYING AGENT AND REGISTRAR. Initially,
U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in the capacity of Paying Agent or Registrar.
(4) INDENTURE. The Company issued
the Notes under an Indenture, dated as of December 12, 2017 (the “Base Indenture” and, as supplemented by the
Supplemental Indenture (as defined below), the “Indenture”), by and between the Company and the Trustee, as supplemented
by that certain Twenty-Third Supplemental Indenture, dated as of August 6, 2026, by and between the Company and the Trustee (the
“Supplemental Indenture”). The terms of this Note include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for
a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company.
(5) OPTIONAL REDEMPTION.
(a) Prior
to May 15, 2036 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part,
at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal
places) equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the Redemption Date (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date
of redemption (the “Redemption Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon, if any, to but excluding the Redemption Date.
A-3
(b) On
or after the Par Call Date, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time,
at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding the Redemption Date.
(c) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Article 3 of the Supplemental Indenture.
(d) Any
redemption or notice of redemption, may, at the Company’s discretion, be subject to one or more conditions precedent.
(6) NOTICE OF REDEMPTION. Notice of
redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to
be redeemed at its registered address and the Trustee, except that redemption notices with respect to any redemption pursuant to Section 3.02
of the Supplemental Indenture may be delivered 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. Notes in denominations larger than $2,000 may be redeemed
in part in connection with any redemption pursuant to Section 3.02, but only in whole multiples of $1,000 unless all of the Notes
held by a Holder are to be redeemed and provided that any unredeemed portion of a Note is equal to $2,000 or a multiple of $1,000
in excess thereof. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease
to accrue on the Notes or portions thereof called for redemption.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) In
the event that the Company or a Restricted Subsidiary is required to commence an offer to all Holders to purchase Notes pursuant to Section 4.05
of the Supplemental Indenture, it will comply with the terms set forth in the Supplemental Indenture, including Section 3.04 thereof.
(b) If
a Change of Control Triggering Event occurs, unless the Company or a third party has previously or concurrently delivered a redemption
notice with respect to all outstanding notes, as described under Section 3.02 of the Supplemental Indenture, the Company will be
required to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part of such Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest,
if any, on the Notes repurchased to but not including the date of repurchase, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control Triggering Event,
the Company will deliver a notice to each Holder, with a copy to the Trustee, setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(8) DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons 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 to be
redeemed in part that is equal to $2,000 or a multiple of $1,000 in excess thereof. Also, the Company need not issue, register the transfer
of or exchange 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.
(9) PERSONS DEEMED OWNERS. The registered
Holder of a Note may be treated as its owner for all purposes.
A-4
(10) AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental
Indenture) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer
for purchase of, the Notes), and any existing Default or Event or Default, other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes (except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture and the Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental Indenture) voting as
a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for purchase of,
the Notes). Without the consent of any Holder of Notes, the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency; provide for the assumption by a Surviving Entity of the obligations of the Company under the Indenture; provide
for uncertificated Notes in addition to or in place of certificated Notes; secure the Notes, add to the covenants of the Company for
the benefit of the holders of the Notes or surrender any right or power conferred upon the Company; make any change that does not adversely
affect the rights of any holder of the Notes; comply with any requirement of the Commission in connection with the qualification of the
Indenture under the TIA; provide for the issuance of Additional Notes in accordance with the Supplemental Indenture; evidence and provide
for the acceptance of appointment by a successor Trustee; conform the text of the Indenture or the Notes to any provision of the “Description
of the 2029, 2033 and 2036 Notes” of the Prospectus to the extent that such provision in the “Description of the 2029, 2033
and 2036 Notes” of the Prospectus was intended to be a recitation of a provision of the Indenture or the Notes; or make any amendment
to the provisions of the Indenture relating to the transfer and legending of the Notes as permitted by the Indenture, including, without
limitation to facilitate the issuance and administration of the Notes; provided that (i) compliance with the Indenture as
so amended would not result in the Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such
amendment does not materially and adversely affect the rights of Holders to transfer the Notes.
(11) DEFAULTS AND REMEDIES. Events of Default
with respect to the Notes include: (i) failure by the Company to pay interest on any Notes when such interest becomes due and payable
and the default continues for a period of 30 days; (ii) failure by the Company to pay the principal on any Notes when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer); (iii) failure by the Company for 60 days after 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
other covenants or agreements in the Indenture (except (i) in the case of a default with respect to Section 5.01 of the Supplemental
Indenture, which will constitute an Event of Default with such notice requirement but without such passage of time requirement and (ii) as
otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture); (iv) the failure to pay at final maturity
(giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company
or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Restricted Subsidiary of notice of any
such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has been so accelerated (in each case with respect to which
the 30-day period described above has passed), equals $500.0 million or more at any time; (v) the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary, pursuant to or within the meaning of Bankruptcy Law, commences a voluntary case, consents to the entry of an order
for relief against it in an involuntary case, consents to the appointment of a custodian for it or for all or substantially all of its
property, makes a general assignment for the benefit of its creditors, or an admission by the Company in writing of its inability to
pay its debts as they become due; or (vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
is for relief against the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Material Subsidiary in an involuntary case; appoints a custodian of the Company
or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Material Subsidiary or for all or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute
a Material Subsidiary or orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Material Subsidiary or
any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Material Subsidiary and the order or decree
remains unstayed and in effect for 60 consecutive days.
A-5
If any Event of Default with respect to outstanding
Notes occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare the principal of, and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration” and the same shall be
immediately due and payable.
Notwithstanding the foregoing, in the case of
an Event of Default arising from the events of bankruptcy or insolvency specified in clauses (v) or (vi) in the second preceding
paragraph above occurring with respect to the Company, all unpaid principal of and accrued and unpaid interest on all of the outstanding
Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except
as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or premium,
if any) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the 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. The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, within five Business Days of any Officer becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
(12) TRUSTEE DEALINGS WITH THE COMPANY.
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.
(13) NO RECOURSE AGAINST OTHERS. No past,
present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or under the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liabilities. The waiver
and release are part of the consideration for the issuance of the Notes.
(14) AUTHENTICATION. This Note will not
be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(15) 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).
(16) 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.
(17) GOVERNING LAW. THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE 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.
A-6
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Equinix, Inc.
One Lagoon Drive
Redwood City, CA 94065
United States of America
Attention: Chief Financial Officer
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-7
OPTION OF HOLDER TO ELECT
PURCHASE
If you want to elect to have this Note purchased
by the Company pursuant to Section 4.05 (Change of Control Offer) of the Supplemental Indenture, check the box below:
¨
Section 4.05
If you want to elect to have only part of the
Note purchased by the Company pursuant to Section 4.05 of the Supplemental 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-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note
for an interest in this Global Note, have been made:
Date
of Exchange
Amount
of
decrease
in Principal
Amount of this
Global Note
Amount
of
increase
in Principal
Amount of this
Global Note
Principal
Amount of
this Global Note
following such
decrease
(or increase)
Signature
of
authorized officer
of
Trustee or
Custodian
*
This schedule should be included only if the Note
is issued in global form.
A-9
EX-4.6 — EXHIBIT 4.6
EX-4.6
Filename: tm2622384d1_ex4-6.htm · Sequence: 7
Exhibit 4.6
Equinix
Europe 2 Financing Corporation LLC,
as Issuer
EQUINIX, INC.,
as Guarantor
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
5.250%
Senior Notes due 2031
Ninth Supplemental Indenture
Dated as of August 6, 2026
to
Indenture dated as of March 18, 2024
TABLE OF CONTENTS
Page
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions
1
Section 1.02.
Conflicts with Base Indenture
15
Article 2
THE NOTES
Section 2.01.
Amount; Series; Terms
15
Section 2.02.
Denominations
16
Section 2.03.
Form of Notes
16
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01.
Redemption
16
Section 3.02.
Optional Redemption of the Notes
16
Section 3.03.
[Reserved]
17
Section 3.04.
Repurchase Offer
17
Article 4
COVENANTS
Section 4.01.
Payment of Notes
18
Section 4.02.
Reports to Holders
19
Section 4.03.
Sale and Leaseback Transactions
19
Section 4.04.
Limitation on Liens
19
Section 4.05.
Offer to Repurchase Upon Change of Control Triggering Event
20
Article 5
MERGER, CONSOLIDATION, OR SALE OF ASSETS
Section 5.01.
Merger, Consolidation, or Sale of Assets
21
Article 6
EVENTS OF DEFAULT
Section 6.01.
Events of Default
22
Section 6.02.
Other Amendments
23
Article 7
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01.
Legal Defeasance and Covenant Defeasance
23
Article 8
SATISFACTION AND DISCHARGE
-i-
Article 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01.
Amendment, Supplement and Waiver
24
Article 10
MISCELLANEOUS
Section 10.01.
Sinking Funds
24
Section 10.02.
Supplemental Indenture
24
Section 10.03.
Guarantees
24
Section 10.04.
Confirmation of Indenture
24
Section 10.05.
Counterpart; Notices
25
Section 10.06.
Governing Law
25
Section 10.07.
Waiver of Jury Trial
25
Section 10.08.
Trustee Disclaimer
25
Exhibit A
Form of Note
A-1
-ii-
NINTH SUPPLEMENTAL INDENTURE, dated as of August 6,
2026 (this “Supplemental Indenture”), to the Indenture dated as of March 18, 2024 (as amended, modified or supplemented
from time to time in accordance therewith, other than with respect to a particular series of debt securities, the “Base Indenture”
and, as amended, modified and supplemented by this Supplemental Indenture, the “Indenture”), by and among Equinix Europe
2 Financing Corporation LLC (the “Issuer”), Equinix, Inc. (the “Guarantor,” as more fully set
forth in Section 1.01), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Notes (as defined herein):
WHEREAS, the Issuer and the Guarantor have duly
authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to
be issued in one or more series as provided in the Base Indenture;
WHEREAS, the Issuer and the Guarantor have duly
authorized the execution and delivery, and desire and have requested the Trustee to join it in the execution and delivery, of this Supplemental
Indenture in order to establish and provide for the issuance by the Issuer and the guarantee by the Guarantor of a series of Notes designated
as its 5.250% Senior Notes due 2031 (the “Initial Notes”) in an initial aggregate principal amount of $850,000,000
on the terms set forth herein;
WHEREAS, Article 9 of the Base Indenture provides
that a supplemental indenture may be entered into by the parties for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base Indenture
for the execution and delivery of this Supplemental Indenture have been met; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture
with respect to the Notes have been done;
NOW, THEREFORE:
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular section hereof.
In addition to the definitions set forth in Article 1
of the Base Indenture, this Supplemental Indenture shall include the following definitions, which, in the event of a conflict with the
definition of terms in the Base Indenture, shall control:
“Additional Notes” has the meaning
set forth in Section 2.01(b).
“Acquired Indebtedness” means
Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Guarantor
or at the time it merges or consolidates with or into the Guarantor or any of its Subsidiaries or that is assumed in connection with the
acquisition of assets from such Person, in each case whether or not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Guarantor or such acquisition, merger or consolidation.
“Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the Depositary
to the extent applicable to such transfer or exchange.
-1-
“ASC” means FASB Accounting
Standards Codification.
“Asset Acquisition” means (1) an
investment by the Guarantor or any Restricted Subsidiary of the Guarantor in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Guarantor or any Restricted Subsidiary of the Guarantor, or shall be merged with or into the Guarantor
or any Restricted Subsidiary of the Guarantor, or (2) the acquisition by the Guarantor or any Restricted Subsidiary of the Guarantor
of the assets of any Person (other than a Restricted Subsidiary of the Guarantor) that constitute all or substantially all of the assets
of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than
in the ordinary course of business.
“Attributable Debt” means, in
respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback Transaction,
of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback Transaction.
“Base Indenture” has the meaning
specified in the introductory paragraph of this Supplemental Indenture.
“Cash Equivalents” means:
(a) debt
securities denominated in Euro, pounds sterling or U.S. dollars to be issued or directly and fully guaranteed or insured by the government
of a Participating Member State, the U.K. or the U.S., as applicable, where the debt securities have not more than twelve months to final
maturity and are not convertible into any other form of security;
(b) commercial
paper denominated in Euro, pounds sterling or U.S. dollars maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least P1 from Moody’s and A1 from S&P;
(c) certificates
of deposit denominated in Euro, pounds sterling or U.S. dollars having not more than twelve months to maturity issued by a bank or financial
institution incorporated or having a branch in a Participating Member State in the United Kingdom or the United States, provided
that the bank is rated P1 by Moody’s or A1 by S&P;
(d) any
cash deposit denominated in Euro, pounds sterling or U.S. dollars with any commercial bank or other financial institution, in each case
whose long term unsecured, unsubordinated debt rating is at least A3 by Moody’s or A- by S&P;
(e) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered
into with any bank or financial institution meeting the qualifications specified in clause (d) above; and
(f) investments
in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.
“Change of Control” means the
occurrence of one or more of the following events:
(1) any
sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets
of the Guarantor to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of the Indenture);
(2) the
approval by the holders of Capital Stock of the Guarantor of any plan or proposal for the liquidation or dissolution of the Guarantor
(whether or not otherwise in compliance with the provisions of the Indenture); or
-2-
(3) any
Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Guarantor.
For the avoidance of doubt, the consummation of
the Guarantor Conversion or the substitution of the Guarantor for the Issuer pursuant to Section 5.03 of the Base Indenture shall
not constitute a “Change of Control.”
“Change of Control Offer” has
the meaning set forth in Section 4.05(a).
“Change of Control Payment”
has the meaning set forth in Section 4.05(a).
“Change of Control Payment Date”
has the meaning set forth in Section 4.05(a).
“Change of Control Triggering Event”
means, in each case, the occurrence of both (i) a Change of Control and (ii) a Rating Event.
“Consolidated Depreciation, Amortization
and Accretion Expense” means with respect to any Person for any period, the total amount of depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and
accretion expense, including the amortization of deferred financing fees or costs of such Person and its Restricted Subsidiaries for such
period, on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means,
with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased
(without duplication) by the following, in each case to the extent deducted in determining Consolidated Net Income for such period:
(1) provision
for taxes based on income or profits or capital, including, without limitation, federal, state, franchise and similar taxes and foreign
withholding taxes (including any levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed
by a governmental agency, and any related interest, penalty, charge, fee or other amount) of such Person paid or accrued during such period
deducted (and not added back) in computing Consolidated Net Income; plus
(2) Consolidated
Interest Expense of such Person for such period to the extent the same were deducted (and not added back) in calculating such Consolidated
Net Income; plus
(3) Consolidated
Depreciation, Amortization and Accretion Expense of such Person for such period to the extent that the same were deducted (and not added
back) in computing Consolidated Net Income; plus
(4) any
expenses or charges (other than depreciation or amortization expense) related to any Equity Offering or the incurrence of Indebtedness
permitted to be incurred in accordance with the Indenture (including a refinancing thereof) (whether or not successful), in each case,
deducted (and not added back) in computing Consolidated Net Income; plus
(5) any
other Non-cash Charges, including any provisions, provision increases, write-offs or write-downs reducing Consolidated Net Income for
such period (provided that if any such Non-cash Charges represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent), and excluding
amortization of a prepaid cash item that was paid in a prior period; plus
-3-
(6) any
costs or expenses incurred by the Guarantor or a Restricted Subsidiary of the Guarantor pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholder agreement, to the extent
that such cost or expenses are funded with cash proceeds contributed to the capital of the Guarantor or net cash proceeds of an issuance
of Equity Interest of the Guarantor (other than Disqualified Capital Stock); plus
(7) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net
Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant
to clause (b) below for any previous period and not added back; plus
(8) any
net loss from disposed or discontinued operations; plus
(9) any
net unrealized loss (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Guarantor), the realized loss on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
(10) any
net unrealized loss (after any offset) resulting in such period from (A) currency translation or exchange losses including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates; plus
(11) the
amount of any minority interest expense (less the amount of any cash dividends paid in such period to holders of such minority interests);
plus
(12) the
amount of any costs and expenses associated with the Guarantor Conversion, including, without limitation, planning and advisory costs
related to the foregoing; and
(b) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(1) non-cash
gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the
reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains
with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period;
(2) any
net gain from disposed or discontinued operations;
(3) any
net unrealized gain (after any offset) resulting in such period from obligations under any Currency Agreements and the application of
ASC 815; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement
(as opposed to the balance sheet, as reasonably determined by the Guarantor), the realized gain on a Currency Agreement shall be included
to the extent the amount of such hedge gain or loss was excluded in a prior period; plus
(4) any
net unrealized gains (after any offset) resulting in such period from (A) currency translation or exchange gains including those
(x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and
(B) changes in the fair value of Indebtedness resulting from changes in interest rates.
-4-
For purposes of this definition, calculations shall
be done after giving effect on a pro forma basis for the period of such calculation to:
(1) the
incurrence or repayment of any Indebtedness or the designation or elimination (including by de-designation) of any Designated Revolving
Commitments of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need
to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment of Indebtedness or designation or elimination (including by de-designation)
of Designated Revolving Commitments, as the case may be (and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period (and in the case of Designated Revolving Commitments, as if Indebtedness in the full amount of any undrawn Designated
Revolving Commitments had been incurred throughout such period); and
(2) any
asset sales or other dispositions or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated
under the Exchange Act) attributable to the assets which are the subject of the Asset Acquisition or asset sale or other disposition during
the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period
and on or prior to the Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence, assumption
or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence
of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed
such guaranteed Indebtedness.
“Consolidated Interest Expense”
means, with respect to any Person for any period, the sum of, without duplication:
(1) the
aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any amortization of debt discount and the amortization or write-off of deferred
financing costs, including commitment fees; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest;
(d) non-cash interest expense (other than non-cash interest on any convertible or exchangeable debt issued by the Guarantor that
exists by virtue of the bifurcation of the debt and equity components of such convertible or exchangeable notes and the application of
ASC 470-20 (or related accounting pronouncement(s))); (e) commissions, discounts and other fees and charges owed with respect to
letters of credit and banker’s acceptance financing; (f) dividends with respect to Disqualified Capital Stock; (g) dividends
with respect to Preferred Stock of Restricted Subsidiaries of such Person; (h) imputed interest with respect to Sale and Leaseback
Transactions; and (i) the interest portion of any deferred payment obligation; plus
(2) the
interest component of Finance Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP; less
(3) interest
income for such period.
“Consolidated Net Income” means,
with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication):
(1) any
after tax effect of extraordinary, non-recurring or unusual gains or losses (including all fees and expenses relating thereto) or expenses;
-5-
(2) any
net after tax gains or losses on disposal of disposed, abandoned or discontinued operations;
(3) any
after tax effect of gains or losses (including all fees and expenses relating thereto) attributable to sale, transfer, license, lease
or other disposition of assets or abandonments or the sale, transfer or other disposition of any Equity Interest of any Person other than
in the normal course of business;
(4) the
net income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting, except to the extent of cash dividends or distributions paid to the Guarantor or to a Restricted Subsidiary of the
Guarantor by such Person;
(5) any
after tax effect of income (loss) from the early extinguishment of (1) Indebtedness, (2) obligations under any Currency Agreement
or (3) other derivative instruments;
(6) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible
assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant
to GAAP, and the amortization of intangibles arising pursuant to GAAP;
(7) any
non-cash compensation charge or expense including any such charge arising from the grants of stock appreciation or similar rights, stock
options, restricted stock or other rights;
(8) any
fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any issuance or repayment
of Indebtedness, issuance of Equity Interests, refinancing transaction, amendment or modification of any debt instrument;
(9) income
or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not
such operations were classified as discontinued);
(10) in
the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any
earnings of the successor entity prior to such consolidation, merger or transfer of assets;
(11) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by contract, operation of law or otherwise; and
(12) acquisition-related
costs resulting from the application of ASC 805.
In addition, to the extent not already included
in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
but without duplication, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any
sale, conveyance, transfer or other disposition of assets permitted under the Indenture (in each case, whether or not non-recurring).
“Currency Agreement” means any
foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Guarantor or any
Restricted Subsidiary of the Guarantor against fluctuations in currency values.
-6-
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.08 of the Base Indenture, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global Security Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“delivered” with respect to
any notice to be delivered, given or mailed to a Holder pursuant to the Indenture, shall mean (x) notice given to the Depositary
(or its designee) in accordance with accepted procedures of the Depositary (in the case of a Global Note) or (y) notice mailed to
such Holder by first class mail, postage prepaid, at its address as it appears on the register of Holders. Notice so “delivered”
shall be deemed to include any notice to be “mailed” or “given,” as applicable, under the Indenture.
“Designated Revolving Commitments”
means the amount or amounts of any commitments to make loans or extend credit on a revolving basis to the Guarantor or any of its Restricted
Subsidiaries by any Person other than the Guarantor or any of its Restricted Subsidiaries that has or have been designated (but only to
the extent so designated) in an Officers’ Certificate delivered to the Trustee as “Designated Revolving Commitments”
until such time as the Obligors subsequently deliver an Officers’ Certificate to the Trustee to the effect that the amount or amounts
of such commitments shall no longer constitute “Designated Revolving Commitments.”
“Disqualified Capital Stock”
means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute
a Change of Control), matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control), in each case, on or prior to the
final maturity date of the Notes.
“Domestic Restricted Subsidiary”
means a Restricted Subsidiary incorporated or otherwise organized under the laws of the United States, any State thereof or the District
of Columbia.
“Electronic Signatures” has
the meaning set forth in Section 10.05.
“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 any
public or private sale of Common Stock or Preferred Stock of the Guarantor (excluding Disqualified Capital Stock), other than:
(a) public
offerings with respect to the Guarantor’s or any direct or indirect parent company’s common stock registered on Form S-4
or Form S-8 (or similar forms under non-U.S. law);
(b) issuances
to any Subsidiary of the Guarantor;
(c) issuances
pursuant to the exercise of options or warrants outstanding on the date hereof;
(d) issuances
upon conversion of securities convertible into Common Stock outstanding on the date hereof;
(e) issuances
in connection with an acquisition of property in a transaction entered into on an arm’s-length basis; and
(f) issuances
pursuant to employee stock plans.
“Euro” means the lawful currency
of the member states of the European Union who have agreed to share a common currency in accordance with the provisions of the Maastricht
Treaty dealing with European monetary union.
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“Event of Default” has the meaning
set forth in Section 6.01.
“fair market value” means, with
respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between
a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair
market value shall be determined by the Board of Directors of each Obligor or any duly appointed officer of the Obligors or a Restricted
Subsidiary, as applicable, acting reasonably and in good faith and, in respect of any asset or property with a fair market value in excess
of $100.0 million, shall be determined by the Board of Directors of each Obligor and shall be evidenced by a Board Resolution of the Board
of Directors of each Obligor delivered to the Trustee.
“Finance Lease Obligations”
means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as finance
lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
“Fitch” means Fitch Ratings
Inc. or any successor to the rating agency business thereof.
“Four Quarter Period” means
the period of four full fiscal quarters for which financial statements are available ending prior to the date of the transaction (the
“Transaction Date”) giving rise to the need to make such calculation.
“GAAP” means generally accepted
accounting principles set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect
as of July 11, 2011.
“Global Notes” means, individually
and collectively, each of the Global Securities 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 Security Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.03 of the Base Indenture and
Section 2.03 hereof.
“Global Security Legend” means
the legend referred to in Exhibit A hereto, which is required to be placed on all Global Notes issued under the Indenture.
“Guarantee” means the guarantee
of the Notes by the Guarantor pursuant to the Indenture.
“Guarantor” has the meaning
specified in the introductory paragraph of this Supplemental Indenture, and subject to the provisions of Article 5, shall include
its successors and assigns.
“Guarantor Conversion” means
the actions taken by the Guarantor and its Subsidiaries in connection with the Guarantor’s qualification as a REIT, including without
limitation, (y) separating from time to time all or a portion of its United States and international businesses into, as defined
by the Code, taxable REIT subsidiaries (“TRS”) and/or qualified REIT subsidiaries (“QRS”) (it being
understood that any such TRS and/or QRS shall remain Restricted Subsidiaries, as applicable, as prior to the Guarantor Conversion) and
(z) amending its charter to impose ownership limitations on the Guarantor’s Capital Stock directly or indirectly by merging
into a Wholly Owned Restricted Subsidiary of the Guarantor.
“Guarantor
Surviving Entity” has the meaning set forth in Section 5.01(a)(2).
“Holder” means a Person in whose
name a Note is registered.
“incur” means, collectively,
create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible
for payment of (collectively, “incur”) any Indebtedness.
“Indebtedness” means with respect
to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
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(2) all
Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all
Finance Lease Obligations and all Attributable Debt of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations
under any title retention agreement (but excluding (i) trade accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 120 days or more or are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such
Person in accordance with GAAP);
(5) all
Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other
than obligations with respect to letters of credit (A) securing Obligations (other than Obligations described in (1)-(4) above)
entered into the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or (B) that are otherwise cash collateralized;
(6) guarantees
and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
(7) all
Obligations of any other Person of the type referred to in clauses (1) through (6) that are secured by any Lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset
or the amount of the Obligation so secured;
(8) all
Obligations under Currency Agreements and Interest Swap Obligations of such Person;
(9) all
Disqualified Capital Stock issued by such Person or Preferred Stock issued by such Person’s non-Domestic Restricted Subsidiaries
with the amount of Indebtedness represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; and
(10) the
aggregate amount of Designated Revolving Commitments in effect on such date.
For purposes hereof, the “maximum fixed repurchase
price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
“Indenture” means the Base Indenture,
as supplemented by this Supplemental Indenture, as amended or supplemented from time to time.
“Initial Notes” has the meaning
specified in the recitals of this Supplemental Indenture.
“Interest Swap Obligations”
means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
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“Interest Payment Date” has
the meaning set forth in Section 2.01(d).
“Investment Grade Rating” means
a rating equal to or greater than BBB- by S&P and Fitch and Baa3 by Moody’s or the equivalent thereof under any new ratings
system if the ratings system of any such agency shall be modified after the Issue Date, or the equivalent rating of any other Rating Agency
selected by the Issuer as provided in the definition of “Rating Agency.”
“Issuer” has the meaning specified
in the introductory paragraph of this Supplemental Indenture, and subject to the provisions of Article 5 , shall include its successors
and assigns.
“Issue Date” means August 6,
2026.
“Issuer Surviving Entity” has
the meaning set forth in Section 5.01(a)(1).
“Material Subsidiary” means
a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act.
“Moody’s” means Moody’s
Investors Service, Inc., or any successor to the rating agency business thereof.
“Non-cash Charges” means, with
respect to any Person, (a) losses on asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related
to intangible assets, long-lived assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from investments
recorded using the equity method, (d) stock-based awards compensation expense, and (e) other non-cash charges (provided
that if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period).
“Notes” means, for all purposes
under the Indenture (including, without limitation, the covenants set forth in the Base Indenture) the Initial Notes issued on the date
hereof and any Additional Notes. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under
the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional
Notes.
“Obligations” means all obligations
for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
“Offer Amount” has the meaning
set forth in Section 3.04.
“Offer Period” has the meaning
set forth in Section 3.04.
“Officers’ Certificate”
means a certificate signed by one or more Authorized Persons of the Issuer and one or more Authorized Persons of the Guarantor, and delivered
to the Trustee.
“Par Call Date” means July 15,
2031.
“Pari Passu Indebtedness” means
any Indebtedness of the Guarantor that ranks pari passu in right of payment with the Guarantee.
“Participating Member State”
means each state, so described in any European Monetary Union legislation, which was a participating member state on December 31,
2003.
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“Permitted Liens” means the
following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Guarantor or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with
past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;
(5) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material
respect with the ordinary conduct of the business of the Guarantor or any of its Restricted Subsidiaries;
(6) any
interest or title of a lessor under any Finance Lease Obligation; provided that such Liens do not extend to any property or assets
which is not leased property subject to such Finance Lease Obligation (other than other property that is subject to a separate lease from
such lessor or any of its Affiliates);
(7) Liens
securing Purchase Money Indebtedness incurred in the ordinary course of business; provided that (a) such Purchase Money Indebtedness
shall not exceed the purchase price or other cost of such property or equipment and shall not be secured by any property or equipment
of the Guarantor or any Restricted Subsidiary of the Guarantor other than the property and equipment so acquired or other property that
was acquired from such seller or any of its Affiliates with the proceeds of Purchase Money Indebtedness and (b) the Lien securing
such Purchase Money Indebtedness shall be created within 360 days of such acquisition;
(8) 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;
(9) 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;
(10) Liens
securing Interest Swap Obligations;
(11) Liens
securing Indebtedness under Currency Agreements;
(12) Liens
securing Acquired Indebtedness; provided that
(a) such
Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Guarantor or
a Restricted Subsidiary of the Guarantor and were not granted in connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Guarantor or a Restricted Subsidiary of the Guarantor; and
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(b) such
Liens do not extend to or cover any property or assets of the Guarantor or of any of its Restricted Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Guarantor or
a Restricted Subsidiary of the Guarantor and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Guarantor or a Restricted Subsidiary of the Guarantor;
(13) Liens
on assets of a Restricted Subsidiary of the Guarantor;
(14) leases,
subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of the Guarantor
and its Restricted Subsidiaries;
(15) banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;
(16) Liens
arising from filing Uniform Commercial Code financing statements regarding leases;
(17) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation
of goods;
(18) Liens
(a) on inventory held by and granted to a local distribution company in the ordinary course of business and (b) in accounts
purchased and collected by and granted to a local distribution company that has agreed to make payments to the Guarantor or any of its
Restricted Subsidiaries for such amounts in the ordinary course of business;
(19) [Reserved];
(20) Liens
securing Indebtedness in respect of Sale and Leaseback Transactions;
(21) [Reserved];
(22) Liens
securing Indebtedness in respect of mortgage financings; and
(23) Liens
with respect to obligations (including Indebtedness) of the Guarantor or any of its Restricted Subsidiaries otherwise permitted under
the Indenture that do not exceed an amount equal to (x) 3.5 times (y) the Consolidated EBITDA of the Guarantor for the
Four Quarter Period to and including the most recent fiscal quarter for which financial statements are internally available immediately
preceding such date.
“Prospectus” means the prospectus
dated February 13, 2026, as supplemented by the prospectus supplement dated July 30, 2026, prepared by the Obligors in connection
with the offering of the Initial Notes.
“Purchase Date” has the meaning
set forth in Section 3.04.
“Purchase Money Indebtedness”
means Indebtedness of the Guarantor and its Restricted Subsidiaries incurred in the normal course of business for the purpose of financing
all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment.
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“Rating Agency” means (1) each
of Fitch, Moody’s and S&P and (2) if Fitch, Moody’s or S&P ceases to rate the Notes for reasons outside of the
Obligors’ control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62)
of the Exchange Act selected by the Issuer as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“Rating Event” means that the
Notes are downgraded by at least one rating category from the applicable rating of such Notes on the first day of the Trigger Period by
two of the Rating Agencies and/or cease to be rated by two of the Rating Agencies, in each case, on any date during the Trigger Period;
provided that a Rating Event will not be deemed to have occurred unless the rating category of the Notes is below an Investment
Grade Rating by two of the Rating Agencies; provided, further, that a Rating Event will not be deemed to have occurred in
respect of a particular Change of Control if each applicable downgrading Rating Agency does not publicly announce or confirm or inform
the Trustee in writing at the Issuer’s request that the reduction was the result of the Change of Control (whether or not the applicable
Change of Control has occurred at the time of the Change of Control Triggering Event). Notwithstanding the foregoing, no Rating Event
will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually
been consummated; provided that in the event that a Rating Agency does not provide a rating of Notes on the first day of the Trigger
Period, such absence of rating shall be treated as both a downgrade in the rating of such Notes below an Investment Grade Rating by such
Rating Agency and a downgrade that results in such Notes no longer being rated at the rating category in effect on the first day of the
Trigger Period by such Rating Agency, in each case, and shall not be subject to the second proviso in the immediately preceding sentence.
The Trustee shall have no obligation to determine whether a Rating Event has occurred.
“Redemption Date” has the meaning
set forth in Section 3.02(a).
“REIT” means a “real estate
investment trust” as defined and taxed under Sections 856-860 of the Code.
“Repurchase Offer” has the meaning
set forth in Section 3.04.
“Restricted Subsidiary” of any
Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.
“S&P” means Standard &
Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.
“Sale and Leaseback Transaction”
means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Guarantor
or a Restricted Subsidiary of any property, whether owned by the Guarantor or any Restricted Subsidiary at the Issue Date or later acquired,
which has been or is to be sold or transferred by the Guarantor or such Restricted Subsidiary to such Person or to any other Person from
whom funds have been or are to be advanced by such Person on the security of such property.
“Subordinated Indebtedness”
means Indebtedness of the Issuer or the Guarantor that is expressly subordinated or junior in right of payment to the Notes or the Guarantee,
respectively.
“Supplemental Indenture” has
the meaning specified in the introductory paragraph of this Supplemental Indenture.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
“Transaction Date” has the meaning
assigned thereto in the definition of “Four Quarter Period.”
“Treasury Rate” means, with
respect to any Redemption Date, the yield determined by the Issuer in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by the Issuer
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption
or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable:
(1) the
yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining
Life”); or
(2) if
there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding
to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15
immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual
number of days) using such yields and rounding the result to three decimal places; or
(3) if
there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury
constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or
maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury
constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States
Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally
distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call
Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or
more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria
of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield
to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as
a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal
places.
“Trigger Period” means the 60-day
period commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement of the occurrence
of a Change of Control or the Guarantor’s intention to effect a Change of Control (which Trigger Period will be extended so long
as the ratings of the Notes are under publicly announced consideration for possible downgrade by any two of the three Rating Agencies);
provided that the Trigger Period will terminate with respect to each Rating Agency when such Rating Agency takes action (including affirming
its existing ratings) with respect to such Change of Control.
“Trustee” has the meaning specified
in the introductory paragraph of this Supplemental Indenture.
“Unrestricted Subsidiary” of
any Person means:
(1) any
Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board
of Directors of such Person in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
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The Board of Directors of the Guarantor may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the Guarantor or any other Subsidiary of the Guarantor that is not
a Subsidiary of the Subsidiary to be so designated; provided that each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Guarantor or any of its
Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if, immediately before and immediately after giving effect to such designation, no Default
or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.
“Wholly Owned Restricted Subsidiary”
means a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares) is owned by the Guarantor
or another Wholly Owned Restricted Subsidiary.
Whenever this Supplemental Indenture refers to
a provision of the TIA, the provision is incorporated by reference in and made a part of this Supplemental Indenture.
All terms used in this Supplemental Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings
so assigned to them.
Section 1.02. Conflicts
with Base Indenture. In the event that any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision
of the Base Indenture, such provision of this Supplemental Indenture shall control.
Article 2
THE NOTES
Section 2.01. Amount;
Series; Terms.
(a) There
is hereby created and designated one series of Notes under the Base Indenture: the title of the Notes shall be “5.250% Senior Notes
Due 2031.” The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Notes that may be issued under the
Base Indenture unless a supplemental indenture with respect to such other series of Notes specifically incorporates such changes, modifications
and supplements.
(b) The
initial aggregate principal amount of Notes is $850,000,000. The Issuer shall be entitled to issue additional notes under this Supplemental
Indenture (“Additional Notes”) 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 (as defined below) applicable thereto;
provided that such issuance is not prohibited by the terms of the Indenture. Any such Additional Notes shall be consolidated and
form a single series with the Initial Notes initially issued including for purposes of voting and redemption; provided that if
such Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall have one
or more separate CUSIP numbers. With respect to any Additional Notes, the Obligors shall set forth in a Board Resolution of their Board
of Directors and in an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Supplemental Indenture;
and (ii) 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.
(c) The
Stated Maturity of the Notes shall be August 15, 2031. The Notes shall be payable and may be
presented for payment, purchase, redemption, registration of transfer and exchange, without service charge, at the office of the Obligors
maintained for such purpose in the United States, which shall initially be the office or agency of the Trustee in the United States.
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(d) The
Notes shall bear interest at the rate of 5.250% per annum from August 6, 2026, or from the most recent date to which interest has
been paid or duly provided for, as further provided in the forms of Global Note annexed hereto as Exhibit A. Interest shall
be computed on the basis of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be payable (each,
an “Interest Payment Date”) shall be February 15 and August 15 of each year, beginning on February 15,
2027, and the record date for any interest payable on each such Interest Payment Date shall be the immediately preceding February 1
or August 1, respectively.
(e) The
Notes will be issued in the form of one or more Global Notes, deposited with the Trustee as custodian for the Depositary or its nominee,
duly executed by the Obligors and authenticated by the Trustee as provided in Sections 2.03 and 2.04 of the Base Indenture.
Section 2.02. Denominations.
The Notes shall be issuable only in registered form without coupons and only in minimum denominations of $2,000 and any multiple of $1,000
in excess thereof.
Section 2.03. Form of
Notes. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto.
However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01. Redemption.
Pursuant to Section 3.01 of the Base Indenture, the following additional redemption provisions in this Article 3 shall apply
to the Notes.
Section 3.02. Optional
Redemption of the Notes.
(a) Prior
to the Par Call Date, the Issuer may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption
price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (as
defined below) (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption (the “Redemption
Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon, if any, to but excluding the Redemption Date (the “Make-Whole Premium”).
(b) On
or after the Par Call Date, the Issuer may redeem the Notes, at its option, in whole or in part, at any time and from time to time, at
a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding, the Redemption Date.
(c) Neither
the Trustee nor any Paying Agent shall have any obligation to calculate or verify the calculation of the Make-Whole Premium.
(d) To
the extent the following provisions are inconsistent with the provisions of Section 3.01 through Section 3.06 of the
Base Indenture, the provisions of Section 3.01 through Section 3.06 of the Base Indenture shall not apply to the Notes, and
the following provisions shall apply in lieu thereof:
(i) In
the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee
in its sole discretion deems appropriate and fair.
(ii) No
Notes of a principal amount of $2,000 or less shall be redeemed in part.
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(iii) Notice
of redemption will be delivered at least 10 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed,
the Trustee and the Paying Agent; provided that, if the redemption notice is issued in connection with a defeasance of the Notes
or satisfaction and discharge of the Indenture governing the Note in accordance with the Indenture, the notice of redemption may be delivered
more than 60 calendar days before the date of redemption. If any Note is to be redeemed in part only, then the notice of redemption that
relates to such Note must state the portion of the principal amount of such Note to be redeemed. A new Note in a principal amount equal
to the unredeemed portion of such Note will be issued in the name of the Holder of such Note upon cancellation of the original Note. Unless
the Issuer defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the Notes or
portions thereof called for redemption.
(e) Any
redemption or notice of redemption, may, at the Obligors’ discretion, be subject to one or more conditions precedent.
(f) For
so long as the Notes are held by the Depositary (or another depositary), any redemption of the Notes shall be done in accordance with
the Applicable Procedures.
Section 3.03. [Reserved].
Section 3.04. Repurchase
Offer. In the event that, pursuant to Section 4.05 hereof, the Issuer is required to commence an offer to all Holders to purchase
Notes (a “Repurchase Offer”), it shall follow the procedures specified below.
The Repurchase Offer shall remain open for a period
of at least 20 Business Days following its commencement, except to the extent that a shorter or longer period is permitted or required,
as the case may be, by applicable law (the “Offer Period”). No later than five Business Days after the termination
of the Offer Period (the “Purchase Date”), the Issuer will purchase at the purchase price (as determined in accordance
with Section 4.05 hereof, as the case may be) the principal amount of Notes required to be purchased pursuant to Section 4.05
hereof, as the case may be (the “Offer Amount”) and, if required, Pari Passu Indebtedness (on a pro rata basis, if
applicable), or, if less than the Offer Amount has been tendered, all Notes and Pari Passu Indebtedness tendered in response to the Repurchase
Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
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, to, but not including, the Purchase
Date 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 Repurchase Offer.
Upon the commencement of a Repurchase Offer, the
Issuer will deliver or cause to be delivered a notice to each of the Holders, with a copy to the Trustee. The notice will contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Repurchase Offer. The notice, which will govern
the terms of the Repurchase Offer, will state:
(a) that
the Repurchase Offer is being made pursuant to this Section 3.04, and Section 4.05 hereof, and the length of time the Repurchase
Offer will remain open;
(b) the
Offer Amount, the purchase price and the Purchase Date;
(c) that
any Note not tendered or accepted for payment will continue to accrue interest;
(d) that,
unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue
interest after the Purchase Date;
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in minimum denominations of
$2,000, or integral multiples of $1,000 in excess thereof;
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(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, a
Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase
Date;
(g) that
Holders will be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter 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;
(h) that,
if the aggregate principal amount of Notes and Pari Passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee
will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such Pari Passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by the Trustee so that no Notes in denominations of $2,000 or less will be purchased
in part); and
(i) 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 Issuer 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 validly
tendered pursuant to the Repurchase 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 Issuer in accordance with the terms of this Section 3.04. The Issuer, the Depositary
or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and
the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer, will authenticate and deliver (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.
Notwithstanding any other provision in the Indenture to the contrary, neither an Opinion of Counsel nor an Officers’ Certificate
is required for the Trustee to authenticate such new Note. Any Note not so accepted shall be promptly returned by the Issuer to the Holder
thereof. The Issuer will publicly announce the results of the Repurchase Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.04
or Section 4.05 of this Supplemental Indenture, as applicable, any purchase pursuant to this Section 3.04 shall be made pursuant
to the applicable provisions of Section 3.01 through Section 3.06 of the Base Indenture, as amended by Section 3.02(d) of
this Supplemental Indenture.
Article 4
COVENANTS
In addition to the covenants set forth in Article 4
of the Base Indenture, the Notes shall be subject to the following additional covenants. Such additional covenants set forth in Sections
4.03 through Section 4.05 below shall be subject to covenant defeasance pursuant to Section 8.03 of the Base Indenture.
Section 4.01. Payment
of Notes. The following paragraph shall be added following the first paragraph of Section 4.01 of the Base Indenture: “The
Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, at the rate equal to 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 such rate to the extent lawful. Interest will be computed daily on the Notes on the basis of a 360-day year comprised of twelve 30-day
months (US 30/360)”.
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Section 4.02. Reports
to Holders. The following sentence shall be added to the end of the second paragraph of Section 4.03 of the Base Indenture: “If
the Guarantor had any Unrestricted Subsidiaries during the relevant period, the Guarantor will also provide to the Trustee and, upon request,
to any Holder of the Notes, information sufficient to ascertain the financial condition and results of operations of the Guarantor and
its Restricted Subsidiaries, excluding in all respects the Unrestricted Subsidiaries.”
Section 4.03. Sale
and Leaseback Transactions. The Obligors will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any property or assets unless:
(1) the
Sale and Leaseback Transaction is solely with the Issuer, the Guarantor or a Restricted Subsidiary;
(2) the
lease is for a period not in excess of 36 months (or which may be terminated by either Obligor or any of its Subsidiaries within a period
of not more than 36 months);
(3) the
Obligors would be able to incur Indebtedness secured by a Lien with respect to such Sale and Leaseback Transaction without equally and
ratably securing the Notes pursuant to Section 4.04(b) (other than in reliance on clause (20) of the definition of “Permitted
Liens”); or
(4) the
Issuer, the Guarantor or such Restricted Subsidiary within 365 days after the sale of such property in connection with such Sale and Leaseback
Transaction is completed, applies an amount equal to the net proceeds of the sale of such property to (i) the redemption of Notes,
other Indebtedness of the Issuer ranking on a parity with the Notes in right of payment or Indebtedness of the Issuer, the Guarantor or
a Restricted Subsidiary or (ii) the purchase of other property; provided that, in lieu of applying such amount to the retirement
of Pari Passu Indebtedness, the Issuer may deliver Notes to the Trustee for cancellation; such Notes to be credited at the cost thereof
to the Issuer.
Section 4.04. Limitation
on Liens. The Obligors will not, and will not cause or permit any of the Restricted Subsidiaries of the Guarantor to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Issuer,
the Guarantor or any of the Restricted Subsidiaries of the Guarantor whether owned on the Issue Date or acquired after the Issue Date,
or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless:
(a) in
the case of Liens securing Subordinated Indebtedness, the Notes or the Guarantor’s Guarantee is secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens; and
(b) in
all other cases, the Notes are equally and ratably secured,
except for:
(1) Liens
existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(2) Liens
securing the Obligations of the Obligors and the Obligations of the Restricted Subsidiaries of the Guarantor under any hedge facility
permitted under the Indenture to be entered into by the Obligors and the Restricted Subsidiaries of the Guarantor;
(3) Liens
securing the Notes or the Guarantor’s Guarantee thereof;
(4) Liens
in favor of the Obligors or a Wholly Owned Restricted Subsidiary of the Guarantor on assets of any Restricted Subsidiary of the Guarantor;
and
(5) Permitted
Liens.
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(c) With
respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness,
such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any
Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, whether payable in
cash or in kind, accretion or amortization of original issue discount, imputed interest, the payment of interest in the form of additional
Indebtedness with the same terms or the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class, and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or
increases in the value of property securing Indebtedness.
Section 4.05. Offer
to Repurchase Upon Change of Control Triggering Event.
(a) Upon
the occurrence of a Change of Control Triggering Event, unless the Issuer or a third party has previously or concurrently delivered a
redemption notice with respect to all outstanding Notes as described under Section 3.02, the Issuer will be required to make an offer
to purchase each Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase
price (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to but not including the date of purchase.
(b) Within
30 days following the date upon which the Change of Control Triggering Event occurred, the Issuer must send (in the case of Notes represented
by Global Notes, in accordance with the Applicable Procedures), or cause the Trustee to send, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall state, among other things, the Purchase
Date, which must be no earlier than 10 days nor later than 60 days after the date such notice is delivered, other than as may be required
by law (the “Change of Control Payment Date”). Holders electing to have a Note purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of
the Note completed and specifying the portion (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s
Notes that it agrees to sell to the Issuer pursuant to the Change of Control Offer, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
(c) The
Obligors will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.05,
the Obligors will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations
under the provisions of this Section 4.05 by virtue of such conflict.
(d) On
the date of such Change of Control Payment, the Issuer will, to the extent lawful:
(1) accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit
with the 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 Issuer.
(e) The
Paying Agent will promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount
of $2,000 or an integral multiple of $1,000. The Issuer will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the date of such Change of Control Payment.
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(f) The
Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if 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 the Indenture applicable to
a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
The Issuer (or a third party) may make a Change of Control Offer in advance of, and conditioned upon, any Change of Control Triggering
Event.
Article 5
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Notes shall not be subject to Section 5.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 5.01 of this Supplemental
Indenture:
Section 5.01. Merger,
Consolidation, or Sale of Assets.
(a) Neither
the Issuer nor the Guarantor will, in a single transaction or series of related transactions, consolidate or merge with or into any Person,
or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Guarantor to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Issuer or the Guarantor’s assets (determined
on a consolidated basis for the Guarantor and the Guarantor’s Restricted Subsidiaries) whether as an entirety or substantially as
an entirety to any Person unless:
(1) in
the case of the Issuer, the Issuer shall be the surviving or continuing Person, or the Person (if other than the Issuer) formed by such
consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Issuer substantially as an entirety (the “Issuer Surviving Entity”) (A) shall
be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia, and
(B) shall expressly assume, by supplemental indenture (in form satisfactory to the Trustee), executed and delivered to the Trustee,
the due and punctual payment of the principal of, and premium, if any, interest on all of the Notes and the performance of every covenant
of the Notes and the Indenture on the part of the Issuer to be performed or observed;
(2) in
the case of the Guarantor, the Guarantor shall be the surviving or continuing Person, or the Person (if other than the Guarantor) formed
by such consolidation or into which the Guarantor is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance
or other disposition the properties and assets of the Guarantor and of the Guarantor’s Restricted Subsidiaries substantially as
an entirety (the “Guarantor Surviving Entity”) (A) shall be an entity organized and validly existing under the
laws of the United States or any State thereof or the District of Columbia, and (B) shall expressly assume, by supplemental indenture
(in form satisfactory to the Trustee), executed and delivered to the Trustee, the performance of the Guarantee and every covenant of the
Notes and the Indenture on the part of the Guarantor to be performed or observed;
(3) immediately
before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B) and clause (2)(B) of
this Section 5.01(a),
no Default or Event of Default shall have occurred or be continuing; and
(4) the
Issuer, or the Issuer Surviving Entity and the Guarantor, or the Guarantor 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 the Indenture and that all conditions precedent in the Indenture relating to such transaction have been
satisfied.
(b) For
purposes of the provisions of Section 5.01(a) hereof, the transfer (by lease, assignment, sale or otherwise, in a single transaction
or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Guarantor,
in a single or a series of related transactions, which properties and assets, if held by the Guarantor instead of such Restricted Subsidiaries,
would constitute all or substantially all of the properties and assets of the Guarantor on a consolidated basis, shall be deemed to be
the transfer of all or substantially all of the properties and assets of the Guarantor.
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(c) Notwithstanding
clauses (1), (2) and (3) of Section 5.01(a) hereof, but subject to the proviso in clause (1)(A) and clause (2)(A) of
Section 5.01(a), the Issuer and the Guarantor may merge with (x) any of the Wholly Owned Restricted Subsidiaries of the Guarantor,
(y) in the case of the Issuer, the Guarantor, or (z) an Affiliate that is a Person that has no material assets or liabilities
and which was organized solely for the purpose of reorganizing the Issuer or the Guarantor in another jurisdiction. For the avoidance
of doubt, following a substitution of the Guarantor for the Issuer with respect to the Notes then outstanding pursuant to Section 5.03
of the Base Indenture, this Section 5.01 shall cease to apply to the Issuer with respect to such Notes. Nothing in this Section 5.01
shall prevent the Guarantor from consummating the substitution pursuant to Section 5.03 of the Base Indenture or prevent the Guarantor
or any Restricted Subsidiary from consummating the Guarantor Conversion.
Article 6
EVENTS OF DEFAULT
The Notes shall not be subject to Section 6.01
of the Base Indenture. In lieu thereof, the Notes shall be subject to the following provisions of Section 6.01 of this Supplemental
Indenture:
Section 6.01. Events
of Default. Any of the following events shall constitute an event of default (an “Event of Default”):
(a) the
failure to pay interest on any Notes when the same becomes due and payable and the Default continues for a period of 30 days;
(b) the
failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer) on the date specified for such payment
in the applicable offer to purchase;
(c) a
Default in the observance or performance of any other covenant or agreement contained in the Indenture which Default continues for a period
of 60 days after the Obligors receive written notice specifying the Default (and demanding that such Default be remedied) from the Trustee
or the Holders of at least 25% of the outstanding principal amount of the Notes (except (i) in the case of a Default with respect
to Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement
and (ii) as otherwise provided in the penultimate paragraph of Section 4.03 of the Base Indenture);
(d) the
failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount
of any Indebtedness of the Issuer, the Guarantor or any Restricted Subsidiary of the Guarantor, or the acceleration of the final stated
maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Issuer,
the Guarantor or such Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or
which has been so accelerated (in each case with respect to which the 30-day period described above has passed), equals $500.0 million
or more at any time;
(e) the
Issuer, the Guarantor or any of its Restricted Subsidiaries that is a Material Subsidiary or any group of Restricted Subsidiaries of the
Guarantor that, taken together, would constitute a Material Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
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(3) consents
to the appointment of a custodian for it or for all or substantially all of its property,
(4) makes
a general assignment for the benefit of its creditors, or
(5) an
admission by the Issuer or the Guarantor in writing of its inability to pay its debts as they become due;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Issuer, the Guarantor or any of the Restricted Subsidiaries of the Guarantor that is a Material Subsidiary or any
group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute a Material Subsidiary in an involuntary case;
(2) appoints
a custodian of the Issuer, the Guarantor or any of the Restricted Subsidiaries of the Guarantor that is a Material Subsidiary or any group
of Restricted Subsidiaries of the Guarantor that, taken together, would constitute a Material Subsidiary or for all or substantially all
of the property of the Issuer, the Guarantor or any of the Restricted Subsidiaries of the Guarantor that is a Material Subsidiary or any
group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute a Material Subsidiary; or
(3) orders
the liquidation of the Issuer, the Guarantor or any of the Restricted Subsidiaries of the Guarantor that is a Material Subsidiary or any
group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute a Material Subsidiary; and the order or decree
remains unstayed and in effect for 60 consecutive days.
(g) the
Guarantee ceases to be in full force and effect, other than in accordance with the terms of the Indenture, or the Guarantor denies or
disaffirms in writing its obligations under the Guarantee, other than in accordance with the terms thereof or upon release of such Guarantee
in accordance with the Indenture.
Section 6.02. Other
Amendments. The Notes shall be subject to Section 6.02 through Section 6.11 of the Base Indenture, except that the references
to “clause (d) or (e) of Section 6.01 hereof” in Section 6.02 of the Base Indenture shall be deemed references
to “clause (e) or (f) of Section 6.01 with respect to the Issuer and the Guarantor” of this Supplemental Indenture.
Article 7
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01. Legal
Defeasance and Covenant Defeasance. The Notes shall be subject to Article 8 of the Base Indenture, except that:
(a) Section 8.04(a) of
the Base Indenture is amended by replacing such Section 8.04(a) with the following: “The Issuer or the Guarantor must
irrevocably deposit with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee), for the benefit of the
Holders, cash in U.S. Dollars, non-callable U.S. government obligations, rated AAA or better by S&P and Aaa by Moody’s, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the Redemption Date,
as the case may be.”
(b) Section 8.04(e) of
the Base Indenture is amended by including “the Guarantor, or a Restricted Subsidiary of the Guarantor” immediately following
each of the last two instances of “the Issuer” in such Section 8.04(e).
(c) Section 8.04(h) is
deleted in its entirety and replaced with “[Reserved].”
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Article 8
SATISFACTION AND DISCHARGE
The Notes shall be subject to Article 10 of
the Base Indenture, except that:
(a) Paragraph
(2) of clause (a) of Section 10.01 of the Base Indenture is amended by replacing such paragraph (2) with the following:
“all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become
due and payable within one year, or are to be called for redemption within one year, under arrangements reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or the Guarantor
has irrevocably deposited or caused to be deposited with the Trustee (or with a custodian or account bank appointed on behalf of the Trustee)
funds in an amount in cash in U.S. dollars, non-callable U.S. government obligations rated AAA or better by S&P and Aaa by Moody’s,
or a combination thereof, sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may
be, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity
or redemption, as the case may be.”
Article 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Amendment,
Supplement and Waiver. The Notes shall be subject to Article 9 of the Base Indenture, except that:
(a) Section 9.02(a)(7) is
amended by replacing “; or” at the end of such clause (7) with“;”;
(b) Section 9.02(a)(8) is
amended by replacing the period at the end of such clause (8) with “; or”;
(c) immediately
following Section 9.02(a)(8), as amended above, the following clause shall be added: “(9) after the Issuer’s obligation
to purchase Notes arises under the Indenture or the Notes, amend, change or modify in any material respect the obligation of the Issuer
to make and consummate a Change of Control Offer in the event of a Change of Control Triggering Event or, after such Change of Control
Triggering Event has occurred, modify any of the provisions or definitions of the Indenture or the Notes with respect thereto.”;
and
(d) Section 9.04(b) is
amended by replacing reference to “clauses (1) through (8) of Section 9.02(a)” at the end of the first sentence
with “clauses (1) through (9) of Section 9.02(a).”
Article 10
MISCELLANEOUS
Section 10.01. Sinking
Funds. The Notes shall not have the benefit of a sinking fund.
Section 10.02. Supplemental
Indenture. The terms of this Supplemental Indenture may be modified as set forth in Article 9 of the Base Indenture as provided
in such Article 9 after giving effect to Article 9 of this Supplemental Indenture.
Section 10.03. Guarantees.
The Notes will be fully and unconditionally guaranteed by the Guarantor and subject to Article 11 of the Base Indenture as well as
other provisions in the Base Indenture applicable to the Guarantee.
Section 10.04. Confirmation
of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
-24-
Section 10.05. Counterpart;
Notices. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement. Counterparts may be delivered via facsimile and electronic mail (including any Electronic Signature)
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This Supplemental Indenture shall be subject to Section 12.02 of the Base Indenture, except that, for purpose of this Supplemental
Indenture, all references in such Section 12.02 to electronic or e-mail transmission or delivery shall be deemed to include Electronic
Signatures. For purposes hereof, “Electronic Signatures” shall mean any digital signature provided by DocuSign (or
such other digital signature provider as specified in writing to the Trustee by an Authorized Officer of the Obligors). The Obligors agree
to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications 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.
Section 10.06. Governing
Law. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE GUARANTOR’S GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK but without giving effect to applicable principles of conflicts
of law to the extent that the application of the law of another jurisdiction would be required thereby.
Section 10.07. Waiver
of Jury Trial. EACH OF THE ISSUER, THE GUARANTOR 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 SUPPLEMENTAL INDENTURE, THE NOTES,
THE GUARANTEE OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.08. Trustee
Disclaimer. The Trustee shall have no responsibility for the validity or sufficiency of this Supplemental Indenture.
[the remainder of this page is intentionally
left blank]
-25-
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the day and year first written above.
EQUINIX EUROPE 2 FINANCING CORPORATION LLC, as Issuer
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Authorized Signatory
-26-
EQUINIX, INC., as Guarantor
By:
/s/ Olivier Leonetti
Name:
Olivier Leonetti
Title:
Chief Financial Officer
-27-
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
/s/ Lauren Costales
Name:
Lauren Costales
Title:
Vice President
-28-
EXHIBIT A
FORM OF NOTE
5.250% Senior Notes due 2031
[Insert the Global Security Legend, if applicable,
pursuant to the provisions of the Indenture]
A-1
[Face of Note]
CUSIP 29390X
AK0
ISIN US29390XAK00
5.250% Senior Notes due 2031
No. ________
$__________
Equinix Europe 2 Financing Corporation LLC
promises to pay to Cede & Co. or registered assigns,
the principal sum of ________________________ DOLLARS [(as revised
by the attached Schedule of Exchanges of Interests in Global Note)]* on August 15, 2031.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2027
Record Dates: February 1 and August 1
Dated: ______, 20__
Equinix Europe 2 Financing Corporation LLC, as Issuer
By:
Name:
Title:
Equinix, Inc., as Guarantor
By:
Name:
Title:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association, Trustee, certifies
that this is one of the Notes referred to in the
Supplemental Indenture.
By:
Authorized Signatory
* Insert
bracketed language for Global Notes only.
A-2
[Back of Note]
5.250% Senior Notes due 2031
Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST.
Equinix Europe 2 Financing Corporation LLC, a Delaware limited liability company (the “Issuer”), promises to pay interest
on the principal amount of this Note at 5.250% per annum from August 6, 2026, until maturity. The Issuer will pay interest semi-annually
in arrears on February 15 and August 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 February 15, 2027. The Issuer 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 equal to the interest 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 daily on the basis of a 360-day year of twelve 30-day months.
(2) METHOD
OF PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the Persons
who are registered Holders of Notes at the close of business on the February 1 or August 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 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest at the office or agency of the Obligors maintained for such purpose within or without the United States,
or, at the option of the Issuer, payment of interest 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
and interest, premium on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the
Issuer 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.
(3) PAYING
AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any
Holder. The Issuer, the Guarantor or any of the Subsidiaries of either Obligor may act in the capacity of Paying Agent or Registrar.
(4) INDENTURE.
The Issuer issued the Notes under an Indenture, dated as of March 18, 2024 (the “Base Indenture” and, as supplemented
by the Supplemental Indenture (as defined below), the “Indenture”), by and among the Issuer, the Guarantor and the
Trustee, as supplemented by that certain Ninth Supplemental Indenture, dated as of August 6, 2026, by and among the Issuer, the Guarantor
and the Trustee (the “Supplemental Indenture”). The terms of this Note include those stated in the Indenture and those
made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Issuer, fully and unconditionally
guaranteed by the Guarantor.
(5) OPTIONAL
REDEMPTION.
(a) Prior
to July 15, 2031 (the “Par Call Date”), the Issuer may redeem the Notes at its option, in whole or in part, at
any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date (assuming the notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption
(the “Redemption Date”), and (2) 100% of the aggregate principal amount of the Notes to be redeemed, plus, in
either case, accrued and unpaid interest thereon, if any, to but excluding, the Redemption Date.
A-3
(b) On
or after the Par Call Date, the Issuer may redeem the Notes, at its option, in whole or in part, at any time and from time to time, at
a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon,
if any, to but excluding, the Redemption Date.
(c) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Article 3 of the Supplemental Indenture.
(d) Any
redemption or notice of redemption, may, at the Obligors’ discretion, be subject to one or more conditions precedent.
(6) NOTICE
OF REDEMPTION. Notice of redemption will be delivered at least 10 days but not more than 60 days before the Redemption Date to each
Holder whose Notes are to be redeemed at its registered address and the Trustee, except that redemption notices with respect to any redemption
pursuant to Section 3.02 of the Supplemental Indenture may be delivered 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. Notes in denominations larger
than $2,000 may be redeemed in part in connection with any redemption pursuant to Section 3.02, but only in whole multiples of $1,000
unless all of the Notes held by a Holder are to be redeemed and provided that any unredeemed portion of a Note is equal to $2,000
or a multiple of $1,000 in excess thereof. Unless the Issuer defaults in payment of the redemption price, on and after the Redemption
Date interest will cease to accrue on the Notes or portions thereof called for redemption.
(7) REPURCHASE
AT THE OPTION OF HOLDER.
(a) In
the event that the Issuer is required to commence an offer to all Holders to purchase Notes pursuant to Section 4.05 of the Supplemental
Indenture, it will comply with the terms set forth in the Supplemental Indenture, including Section 3.04 thereof.
(b) If
a Change of Control Triggering Event occurs, unless the Issuer or a third party has previously or concurrently delivered a redemption
notice with respect to all outstanding Notes, as described under Section 3.02 of the Supplemental Indenture, the Issuer will be required
to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part of such Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest,
if any, on the Notes repurchased to but not including the date of repurchase, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control Triggering Event, the
Issuer will deliver a notice to each Holder, with a copy to the Trustee, setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(8) DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons 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 Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer 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 to be redeemed in part that is equal to $2,000 or a multiple of $1,000 in excess thereof. Also, the Issuer need not issue, register
the transfer of or exchange 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.
(9) PERSONS
DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
A-4
(10) AMENDMENT,
SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any,
issued under the Supplemental Indenture) voting as a single class (including, without limitation, consents obtained in connection with
a tender offer or exchange offer for purchase of, the Notes), and any existing Default or Event or Default, other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on the Notes (except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of the Indenture and the Notes may be waived with the consent of the Holders
of a majority in aggregate principal amount of the then outstanding Notes (including Additional Notes, if any, issued under the Supplemental
Indenture) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer
for purchase of, the Notes). Without the consent of any Holder of Notes, the Indenture or the Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency; provide for the assumption by an Issuer Surviving Entity of the obligations of the Issuer
and/or the assumption by a Guarantor Surviving Entity of the obligations of the Guarantor under this Indenture; provide for uncertificated
Notes in addition to or in place of certificated Notes; add additional guarantees with respect to the Notes or confirm and evidence the
release, termination or discharge of any security or guarantee when such release, termination or discharge is permitted by the Indenture;
secure the Notes, add to the covenants of the Obligors for the benefit of the Holders of the Notes or surrender any right or power conferred
upon the Obligors; make any change that does not adversely affect the rights of any Holder of the Notes; comply with any requirement of
the Commission in connection with the qualification of the Indenture under the TIA; provide for the issuance of Additional Notes in accordance
with the Supplemental Indenture; evidence and provide for the acceptance of appointment by a successor Trustee; conform the text of the
Indenture or the Notes to any provision of the “Description of the 2031 Notes” of the Prospectus to the extent that such provision
in the “Description of the 2031 Notes” of the Prospectus was intended to be a recitation of a provision of the Indenture or
the Notes; make any amendment to the provisions of the Indenture relating to the transfer and legending of the Notes as permitted by the
Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided that (i) compliance
with the Indenture as so amended would not result in the Notes being transferred in violation of the Securities Act or any applicable
securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer the Notes; or to
evidence the substitution of the Guarantor for the Issuer and the assumption by the Guarantor of the rights, powers, covenants, agreements
and obligations of the Issuer pursuant to Section 5.03 of the Base Indenture.
(11) DEFAULTS
AND REMEDIES. Events of Default with respect to the Notes include: (i) failure by the Issuer to pay interest on any Notes when
such interest becomes due and payable and the default continues for a period of 30 days; (ii) failure by the Issuer to pay the principal
on any Notes when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer) on the date specified for such payment in the applicable offer to purchase;
(iii) failure by the Obligors for 60 days after notice to the Obligors 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 other covenants or agreements in the
Indenture (except (i) in the case of a default with respect to Section 5.01 of the Supplemental Indenture, which will constitute
an Event of Default with such notice requirement but without such passage of time requirement and (ii) as otherwise provided in the
penultimate paragraph of Section 4.03 of the Base Indenture); (iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Issuer, the Guarantor or any
Restricted Subsidiary of the Guarantor, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 30 days of receipt by the Issuer, the Guarantor or such Restricted Subsidiary of
notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at final stated maturity or which has been so accelerated (in each case with
respect to which the 30-day period described above has passed), equals $500.0 million or more at any time; (v) the Issuer, the Guarantor
or any of the Restricted Subsidiaries of the Guarantor that is a Material Subsidiary or any group of Restricted Subsidiaries of the Guarantor
that, taken together, would constitute a Material Subsidiary, pursuant to or within the meaning of Bankruptcy Law, commences a voluntary
case, consents to the entry of an order for relief against it in an involuntary case, consents to the appointment of a custodian for it
or for all or substantially all of its property, makes a general assignment for the benefit of its creditors, or an admission by the Issuer
or the Guarantor in writing of its inability to pay its debts as they become due; (vi) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that is for relief against the Issuer or the Guarantor or any of the Restricted Subsidiaries
of the Guarantor that is a Material Subsidiary or any group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute
a Material Subsidiary in an involuntary case; appoints a custodian of the Issuer, the Guarantor or any of the Restricted Subsidiaries
of the Guarantor that is a Material Subsidiary or any group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute
a Material Subsidiary or for all or substantially all of the property of the Issuer, the Guarantor or any of the Restricted Subsidiaries
of the Guarantor that is a Material Subsidiary or any group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute
a Material Subsidiary or orders the liquidation of the Issuer, the Guarantor or any of the Restricted Subsidiaries of the Guarantor that
is a Material Subsidiary or any group of Restricted Subsidiaries of the Guarantor that, taken together, would constitute a Material Subsidiary
and the order or decree remains unstayed and in effect for 60 consecutive days; or (vii) the Guarantee ceases to be in full force
and effect, other than in accordance with the terms of the Indenture, or the Guarantor denies or disaffirms in writing its obligations
under the Guarantee, other than in accordance with the terms thereof or upon release of the Guarantee in accordance with the Indenture.
A-5
If any Event of Default with respect to outstanding
Notes occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare the principal of, and accrued and unpaid interest on all the Notes to be due and payable by notice in writing to the Obligors
and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration” and the same shall be
immediately due and payable.
Notwithstanding the foregoing, in the case of an
Event of Default arising from the events of bankruptcy or insolvency specified in clauses (v) or (vi) in the second preceding
paragraph above occurring with respect to the Issuer or the Guarantor, all unpaid principal of and accrued and unpaid interest on all
of the outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal
or interest or premium, if any) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders, rescind an acceleration or waive
any existing Default or Event of Default and its consequences under the 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. The Obligors are required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Obligors are required, within five Business Days of any Authorized Person
becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
(12) GUARANTEE
AND SUBROGATION. Subject to the provisions of Article 11 of the Base Indenture, the
Guarantor irrevocably, fully and unconditionally guarantees, on an unsecured basis, the full and punctual payment (whether at maturity,
upon redemption, or otherwise) of the principal of and interest on, and all other amounts payable under, the Notes to be issued pursuant
to this Indenture, and the full and punctual payment of all other amounts payable by the Issuer under this Indenture. Upon failure by
the Issuer to pay punctually any such amount, the Guarantor shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in this Indenture.
Subject to the provisions
in Section 5.03 of the Base Indenture, the Obligors may at any time, without the consent of any Holders, arrange for and cause the
substitution of the Guarantor (including any successor Guarantor pursuant to Section 5.01
of the Supplemental Indenture) for the Issuer as the principal obligor in respect of the Notes then outstanding, if, immediately after
giving effect to such substitution, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event
of Default, has occurred and is continuing (other than a Default or Event of Default that would be cured by such substitution).
The Guarantee will
terminate with respect to the Notes upon defeasance or discharge of the Notes, as provided in Article 8
of the Base Indenture, and upon the substitution of the Guarantor for the Issuer as provided in Section 5.03
of the Base Indenture with respect to the Notes.
A-6
(13) TRUSTEE
DEALINGS WITH THE OBLIGORS. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Obligors or any Affiliate of the Obligors with the same rights it would have if it were not Trustee.
(14) NO
RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of
the Obligors, as such, shall have any liability for any obligations of the Obligors under the Notes or under the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liabilities. The waiver and release are part of the consideration for the issuance of the Notes.
(15) AUTHENTICATION.
This Note will not be valid until authenticated by the manual 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 Issuer 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 LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE AND THE GUARANTOR’S GUARANTEE
BUT 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 Issuer will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Equinix, Inc.
One Lagoon Drive
Redwood City, CA 94065
United States of America
Attention: Chief Financial Officer
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
A-7
to transfer this Note on the books of the Issuer. 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-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased
by the Issuer pursuant to Section 4.05 (Change of Control Offer) of the Supplemental Indenture, check the box below:
¨ Section 4.05
If you want to elect to have only part of the Note
purchased by the Issuer pursuant to Section 4.05 of the Supplemental 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-9
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL
NOTE*
The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note
for an interest in this Global Note, have been made:
Date of Exchange
Amount of
decrease
in Principal
Amount of this
Global Note
Amount of
increase
in Principal
Amount of this
Global Note
Principal
Amount of
this Global Note
following such
decrease
(or increase)
Signature of
authorized officer
of
Trustee or
Custodian
*
This schedule should be included only if the Note is issued in global form.
A-10
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2622384d1_ex5-1.htm · Sequence: 8
Exhibit 5.1
Davis Polk & Wardwell llp
900 Middlefield Road
Redwood City, CA 94063
davispolk.com
August 6, 2026
Equinix, Inc.
One Lagoon Drive
Redwood City, California 94065
Equinix Europe 2 Financing Corporation LLC
One Lagoon Drive
Redwood City, California 94065
Ladies and Gentlemen:
Equinix, Inc., a Delaware corporation (the
“Parent”) and Equinix Europe 2 Financing Corporation LLC, a Delaware limited liability company (the
“Europe 2 Finco”) have filed with the Securities and Exchange Commission a post-effective amendment no. 3 to the
Registration Statement on Form S-3 (File No. 333-275203) (as amended, the “Registration Statement”) for the
purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities,
including $850,000,000 aggregate principal amount of the Parent’s 5.000% Senior Notes due 2029 (the “2029
Notes”), $850,000,000 aggregate principal amount of the Europe 2 Finco’s 5.250% Senior Notes due 2031 (the
“2031 Notes”), fully and unconditionally guaranteed by the Parent (the “Guarantee”, and,
together with the 2031 Notes, the “2031 Securities”), $650,000,000 aggregate principal amount of the
Parent’s 5.500% Senior Notes due 2033 (the “2033 Notes”) and $650,000,000 aggregate principal amount of the
Parent’s 5.800% Senior Notes due 2036 (the “2036 Notes”). The 2029 Notes, the 2031 Notes, the 2033 Notes
and the 2036 Notes are referred to herein as the “Notes,” and the Notes together with the Guarantee are referred
to herein as the “Securities”.
The 2029 Notes are to be issued pursuant to the provisions of the
Indenture dated as of December 12, 2017 (the “Parent Base Indenture”) by and between the Parent and U.S. Bank
Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the
“Trustee”), as supplemented by the Twenty-First Supplemental Indenture dated as of August 6, 2026 by and between
the Parent and the Trustee (together with the Parent Base Indenture, the “2029 Notes Indenture”). The 2033 Notes
are to be issued pursuant to the provisions of the Parent Base Indenture as supplemented by the Twenty-Second Supplemental Indenture
dated as of August 6, 2026 by and between the Parent and the Trustee (together with the Parent Base Indenture, the “2033 Notes Indenture”). The
2036 Notes are to be issued pursuant to the provisions of the Parent Base Indenture as supplemented by the Twenty-Third Supplemental
Indenture dated as of August 6, 2026 by and between the Parent and the Trustee (together with the Parent Base Indenture, the “2036 Notes
Indenture”). The 2029 Notes, the 2033 Notes and the 2036 Notes are to be sold pursuant to the Underwriting Agreement dated
July 30, 2026 (the “Parent Underwriting Agreement”) between the Parent and the several underwriters named therein
(the “2029 Notes, 2033 Notes and 2036 Notes Underwriters”).
The 2031 Securities are to be issued pursuant to the provisions
of the Indenture dated as of March 18, 2024 (the “Europe 2 Finco Base Indenture”) by and among the Europe 2
Finco, the Parent and the Trustee, as supplemented by the Ninth Supplemental Indenture dated as of August 6, 2026 by and among the
Europe 2 Finco, the Parent and the Trustee (together with the Europe 2 Finco Base Indenture, the “2031 Notes Indenture”). The 2029 Notes Indenture, the
2031 Notes Indenture, the 2033 Notes Indenture and the 2036 Notes Indenture are referred to herein as the
“Indentures.”) The 2031 Securities are to be sold pursuant to the Underwriting Agreement dated July 30, 2026 (the
“Europe 2 Finco Underwriting Agreement”) among the Europe 2 Finco, the Parent and the several underwriters named
therein (the “2031 Notes Underwriters”, and, together with the 2029 Notes, 2033 Notes and 2036 Notes
Underwriters, the “Underwriters”).
We, as your counsel, have examined originals or copies of such documents,
corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
In rendering the opinion expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted
to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all
natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and
officers of the Europe 2 Finco and the Parent that we reviewed were and are accurate and (vi) all representations made by the Europe 2
Finco and the Parent as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions
and qualifications set forth below, we advise you that, in our opinion:
1. When the 2029 Notes, the 2033 Notes and the 2036 Notes have been duly executed and authenticated in accordance with the provisions
of the 2029 Notes Indenture, the 2033 Notes Indenture and the 2036 Notes Indenture, respectively, and delivered to and paid for by the
2029 Notes, 2033 Notes and 2036 Notes Underwriters pursuant to the Parent Underwriting Agreement, the 2029 Notes, the 2033 Notes and the
2036 Notes will constitute valid and binding obligations of the Parent, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, provided that we express no opinion as to (w) the enforceability of any waiver of rights under any usury or
stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed
above, or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated
principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
2. When the 2031 Notes have been duly executed and authenticated in accordance with the provisions of the 2031 Notes Indenture and delivered
to and paid for by the 2031 Notes Underwriters pursuant to the Europe 2 Finco Underwriting Agreement, the 2031 Notes will constitute valid
and binding obligations of Europe 2 Finco, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability,
provided that we express no opinion as to (w) the enforceability of any waiver of rights under any usury or stay law, (x) the effect of
fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above, or (y) the validity,
legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon
acceleration of the Notes to the extent determined to constitute unearned interest.
3. The Guarantee, when the 2031 Notes have been duly executed and authenticated in accordance with the provisions of the 2031 Notes
Indenture and delivered to and paid for by the 2031 Notes Underwriters pursuant to the Europe 2 Finco Underwriting Agreement, will
be valid and binding obligations of the Parent, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of
general applicability, provided that we express no opinion as to (w) the enforceability of any waiver of rights under any usury or
stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions
expressed above or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any
portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
August 6, 2026 2
In addition, we have assumed that the Indentures and the Notes (collectively,
the “Documents”) are valid, binding and enforceable agreements of each party thereto (other than as expressly covered
above in respect of the Europe 2 Finco and the Parent). We have also assumed that the execution, delivery and performance by each party
to each Document to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the
certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing
with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable
law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided
that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Europe 2 Finco and
the Parent.
We are members of the Bars of the States of New York and California
and the foregoing opinions are limited to the laws of the States of New York and California, the General Corporation Law of the State
of Delaware and the Delaware Limited Liability Company Act, except that we express no opinion as to (i) any law, rule or regulation that
is applicable to the Europe 2 Finco or the Parent, the Documents or such transactions solely because such law, rule or regulation is part
of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business
of such party or such affiliate or (ii) any law, rule or regulation relating to national security.
We hereby consent to the filing of this opinion as an exhibit to a
report on Form 8-K to be filed by the Parent on the date hereof and its incorporation by reference into the Registration Statement and
further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement which is a part
of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
August 6, 2026 3
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